People v. Moore

People y Moore PEOPLE MOORE (Calendar 1). 3, Argued May May Docket No. 80432. No. Decided 8, 1989. Timothy by jury in Moore was convicted the Detroit Recorder’s Court, Talbot, J., second-degree Michael J. of murder and possession during felony, of a firearm commission of a prison years of to 200 sentenced to a term from 100 so Sullivan, P.J., parole. Appeals, as to foreclose The Court of Penzien, JJ., unpublished and Gribbs and E. C. affirmed opinion per curiam, holding that the sentence was not cruel or punishment sentencing judge unusual and that had not (Docket 89319). ap- abused his discretion No. The defendant peals. Cavanagh opinion joined by Levin, In an Justice Justices Brickley, Supreme Archer, held: Court years A term must be an indeterminate less sentence than reasonably possible life that is for a defendant to serve. person second-degree pun- may 1. A convicted murder by imprisonment ished for a fixed term—life—or for an indeter- case, minate term of less In than life. the entire interval between the defendant’s minimum and maximum death, sentences is certain occur to after his and thus indeterminate. exception persons first-degree 2. With the convicted offenses, persons or murder controlled substance sentenced to prison eligible parole life in term to a are provision Michigan consideration. There nois under law for the imposition nonparolable sentencing of a A authority preclude parole does not have the lawful for a person prison. sentenced to life case, length imposed 3. The effective in this imprisonment, shocking is neither nor an of the trial abuse However, imposing court’s discretion. serve, impossible foreclosing thereby

which is for himself or regard a successor the future exercise of the discretion with References 2d, Am Jur Criminal 606. Law §§ See the Index Annotations under Indeterminate Sentence. 432 Mich 311 clearly provided in cases where person to life murder is sentenced convicted of discretion, sentencing judge re- imprisonment, his abused resentencing. quiring and remand for reversal Reversed and remanded. Riley Boyle, joined by Justice and Justice Chief Justice Griffin, dissenting, in this case is not stated that the issue but, imposed, can the sentence whether the defendant serve rather, impose lawfully it. The term whether the court can second-degree prescribed is for murder life meaning, language

years. Giving ordinary the words their term of an intent to confine a of the statute does not evidence Rather, expectancy. years to than a a term less defendant’s years "any years” plainly without means a is for the conclusion limitation as to duration. There no basis of a term of that the of a life sentence is a sentence alternative years than life. less A and which bears sentence which authorized statute sentencing goal relationship legitimate does not to a reasonable is it an abuse of discre- constitute an abuse of discretion. Nor tion for a trial court to foreclose its or a successor’s where, case, effectively discretion as in this regarding judicial release hoard discretion foreclosed and serving prior to a minimum term. case, authority imposed within the In this the sentence granted support legislatively no for to the trial court. There is opinion. the statute in the lead the construction of offered Sentencing — — Sentences. Law Indeterminate Criminal imposed A indeterminate a term of must be an possible reasonably for a defen- less than life that is dant to serve. Attorney Kelley, General, J. Louis

Frank J. O’Hair, General, D. Prose- Caruso, John Solicitor Baughman, Attorney, Timothy cuting Chief, A. Training Ap- Research, Division, Criminal Mary peals, Czarnecki, Prose- Assistant Sue people. cuting Attorney, (by Appellate P. E. Bennett and Defender State Bell) for the defendant. Fred E. Moore Opinion of the Court

Amicus Curiae: Joseph L.

Elizabeth Jacobs for Cole. defendant has been convicted Cavanagh, of of from murder1 and sentenced to a term prison. argues He agree, the sentence is unlawful. We fore remand this case to the trial court for resen- and we there- tencing.

i February In the defendant killed romantically woman with whom he had been in- prosecuted volved. The defendant was gree for first-de- possession murder2 and for of a firearm dur- ing felony.3 the commission of this

Three at the witnesses testified defendant’s trial. they variations, With minor testified as follows. The victim and her current flaneé were home when the defendant and the defendant’s sister sought speak arrived.4 The defendant with the produced time, victim. After a the defendant pistol from a took briefcase and the victim to sight. room, another out of the witnesses’ The pleading victim was heard not to be killed and then one or two shots were heard. The victim’s get help, fiancé went to fled. On his and the defendant’s sister return, the victim’s fiancé found her "laying quite [sic] [with] in the kitchen a few stab wounds to the chest.” The defense proofs. no introduced jury guilty found the defendant of second- degree felony-firearm. murder and As noted the the witnesses at trial. The the scene after the homicide took ^[2] 4 3 1 MCL MCL The victim’s MCL 750.227b; MSA 750.317; 750.316; present MSA 28.549. MSA 28.548. 28.424(2). fiancé and the defendant’s sister were two of third was a place. police ofiicer who was called to [May- 311 op Opinion the Court sentencing presentence report the in this judge, history that the had case indicated that had assaultive crime and the defendant been victim, planning harassing perhaps and her, time. The defendant did harm for some challenge report. accuracy presentence a term of from sentencing judge imposed murder.5 prison 100 to for so, n he that doing clearly purpose I stated the 100- was foreclose 200-year sentence parole: appellate

Because the courts of our state have point of said that fact a life sentence for this of crime allows him to reviewed in ten sort I to utilize intend numbers with belief requires law numbers be served review.[6] you eligible before become

II Appeals The Court of affirmed the convictions Court and sentence.7 The said defendant’s 100- to not cruel or unusual 200-year had and punishment8 not abused his discretion: A does not cruel unu- constitute and punishment statutory when is within limits

sual judicial does conscience. not shock two-year also to serve a consecutive The defendant was sentenced imprisonment felony-firearm. course, enacting 791.234(4); Legislature, it is the Of 28.2304(4) amendments, revisiting through eight this act appellate than courts of our state” which has stated rather parole-eligibility "the law,” rule found the so-called "lifer MCL 28.2304(4). 791.234(4); MSA 7 Moore, unpublished per People Timothy opinion v curiam (Docket 89319). February 19, Appeals, No. decided 1987 Court 8 1963, 1, 16. Const art § People 315 v Moore Opinion of the Court 724, Curry, App 142 371 v Mich NW2d 854 Knoll, (1985); People 701, 704; v App 137 Mich 358 (1984). 926 NW2d Here, any the sentence was within the "life or statute, by years” term of sentence authorized Moreover, 750.317; 28.549. we MCL MSA believe that, contrary argument, the fact to defendant’s prior parole that will not be available to defen- span erro- dant’s life does not make sentence People v neously harsher than a life sentence. Rodgers, 582, 584-585; App 186 840 30 Mich NW2d Williams, [1971]; People v Charles App 19 Mich (1971), 546; 172 lv den 386 Mich NW2d (1972). Martinez, People v This case is similar (1985), App 94; lv Mich 382 NW2d den Martinez, (1986), plaintiff. In by cited manslaughter defendant was convicted and ha- offender, offense, bitual fourth and was sentenced prison years. to a claimed, term of 100 to 150 Defendant alia, inter the sentence was abuse longer of discretion it was than his life because designed prevent him from expectancy and qualifying for parole. rejected This Court these arguments, concluding:

"First, imposed was evident sentence that Mr. was fashioned to insure Martinez would again. judge quite never be a free man The trial design 'to pointedly stated that he intended a Mr. sentence that will mean that Martinez will statute, prison.’ Under not be released from MCL 28.1084, 769.12; MSA the trial court had the authority to Mr. Martinez for life or for judge obviously lesser term. The trial selected long hopes of life in years instead law,’ 28.2304(4), 791.234(4); the 'lifer Mr. Martinez apply would not so as to make eligible serving ten consideration after Johnson, calendar 494; See persuaded 364 NW2d 654 We are imposing lengthy not err in the trial court did expressly where such statute and warranted dispas- authorized 432 311 316 Mich Opinion of the Court sentencing legitimate sionate consideration objectives. criteria and argument aspect of Mr. Martinez’s

"The second that, effect, imposed the trial a sentence court Obviously, expectancy. his which will exceed life is no that was the trial court’s intent and there justified. not In showing that such sentence fact, should there is no claim that this sentence could this nor there be. shock Court’s conscience sup- prior fully record Mr. Martinez’s extensive ported imposition this case.” App 95-96. at specified that Similarly, the trial court here keep impose that wanted would life, prison for rest of his while defendant possibility preventing the would trial paroled in 10 under the "lifer law.” The shocking” also the "heinous court considered crime, prior criminal nature record, defendant’s protect society deterrence and the needs punish defendant. These factors were all and'to and, factors, legitimate considering these the sen- tence does shock the conscience this Court. mere fact sentence exceed’s [sic] change expectancy does not defendant’s Coles, Martinez, People People supra; v v result. (1983). Mich 339 440 See also 417 NW2d Crawford, People v App [88]-90; 372 Mich NW2d (1985). Cf. People v Hurst, ^[155] [573; (1986)]. App 400 NW2d granted leave to to consider several appeal We in this case.9 Peo- aspects imposed the sentence Moore, 429 Mich 858 ple Timothy granted appeal to the whether leave to issue We "[l]imited (1) 200-year contrary to the intent of 100- to sentence was (2) act, Legislature enacting cruel or the indeterminate (3) punishment, to the it is an abuse of discretion extent unusual court, (4) contrary shocking appellate of an conscience separation powers doctrine.” v Moore Opinion of the Court III A. THE PENALTY FOR SECOND-DEGREE MURDER Employing language used in connection with offenses,10 number other established murder "shall be punished by imprisonment in the prison state life, or in any the discretion of the trying court the same.” face,

itsOn the stated for penalty ("life, or murder any indicates that years”) 11 a term of is a years penalty lesser than life. This explained Moore, well in 164 People v Oscar 378, (1987).12 389-391; App Mich 417 In NW2d 508 case, that the given defendant had been a 100- to of 300-year term imprisonment following a convic tion of armed robbery. Appeals Court of built the upon Johnson, majority opinion People in v 494; 421 Mich 364 (1984), NW2d 654 the to reach conclusion that "any term of must a years” mean period than shorter life. that

We believe earlier mis- [certain decisions] 10 People Blythe, 430, 435, 2; See v Mich 417 n 339 399 NW2d (1983). 11Dissenting People Johnson, 494, 500; in v 421 Mich 364 NW2d Boyle (1984), 654 that one could possibility Justice characterized as "anomalous” the paroled be from life sentence earlier than a sentence (After Remand), years. People App for a of In term v Hurst 169 Mich 160; (1988), Appeals a life sentence than a that, 425 NW2d 752 Court the of concluded under law, present from supports receiving one is better off of term prison. Though opinion today necessarily 80 in 40 to our conclusion, that we offer otherwise no comment that on Hurst, except Legislature conclusion of correct real and to observe that is for the perceived statutory sentencing in inconsistencies law. We further note that has not amended MCL 28.2304(4) 791.234(4); in the five since this Court decided Johnson. 12 Moore, prosecutor’s applica- In Oscar Court ordered that the appeal application tion appeal the Supreme leave and the defendant’s leave cross-appellant abeyance pending as be in held our decision present People Moore, unpublished case. v Oscar order 82069). Court, (Docket dated March 1988 No. Mich 311 Opinion of the Court People In phrase "any years.” term construe (1983), 430; 339 Blythe, v 417 Mich NW2d phrase "for whether the Supreme Court considered robbery the armed statute years” any term sen- mandatory minimum required imposition not, Supreme determining it did In

tence. Court phrase referred concluded imposed. at sentence to maximum Johnson, supra 497-498, Supreme at 434. In Court wrote: a life sentence and "The difference between having minimum and indeterminate maximum since recognized Court by this term has been Vitali, People v 156 Mich our decision in Vitali if We observed 120 NW mini- imposed there can be no a life sentence is mum term. im- "Accordingly, a statute authorizes the when years’ any of 'life or term position of a sentence imposition of a fixed sentence—life— it or allows sentence—any number of an indeterminate Blythe, We observed (1983), Legis- 430, 434-435; 339 NW2d years’ phrase 'life lature viewed the as descriptive only. of the maximum sentence years’ are concepts 'any 'life’ and term of sentence (in sentencing judge may and a mutually exclusive case) opt for but not both.” appropriate either the mutually "any years” term of are If "life” and the concepts, Court’s statement the exclusive "any years” of imposition of number allows

latter must mean years less than life.” "any of number definition, person prison a a cannot serve By person’s life. A lasting longer than that sentence life law, greater penalty is, of term as a matter McNeal, People v 156 Mich years. a term of than (1986); People v 379, 381; 401 NW2d App 412, 415; 362 NW2d 304 Lindsey, 139 Mich App (1984). Therefore, meaningless person to for a it is longer phrase than life. The a sentence receive time cannot mean a years” of also "any term surplusage for the life, then be as it would equal life sentences provided Legislature to have also in the same statute. People v Moore Opinion of the Court remains, then, All years is a term of less Moore,

than life. App 389-391. [Oscar Emphasis original.] in types Thus there are of two sentences that a judge may impose upon person convicted prison, in murder—a sentence of life years or a sentence a term of less than life.13 B. THE INDETERMINATE ACT SENTENCING judge impose years If the chooses to term life, less than the sentence must be an indetermi- sentence, nate as in stated the indeterminate sen- tencing act: In all cases the where maximum in the may imprisonment discretion of the court any

life or years, number court may or impose a may impose sentence for life or any a sen- years. tence for If term im- posed by the court is for any fix court shall both the minimum maxi- mum of in of years that sentence terms or fraction thereof, imposed and sentences so shall be consid- ered indeterminate sentences. The court shall not 28.1084(l)(a), 769.12(l)(a); Legislature In MCL MSA em phrase ployed concurring "for for a lesser term.” The opinion 390 Robinson, 650, 656-657; App 432 NW2d (1988), phrase language statutory contrasted that with the consid unpersuaded by proposed ered in Oscar Moore. We are distinction. 769.12; The "lesser from term” formulation MCL MSA 28.1084 comes (1949 a 1949 amendment of the Code of Criminal PA Procedure 56). "any years” predates term formulation Code Penal many surely the 1949 not amendment issue, thinking present since was not until recent decades-long reason for a existed think that a prison longer would cause a defendant to remain in than imprisonment. a term would of life believe, noting usage We further after found 28.1084(1)(b) 769.12(1)(b); 769.12(2); 28.1084(2), and MCL MSA 769.12; fairly employ can term” that MCL changeably MSA 28.1084 be read to inter phrase phrase "any the "a lesser and the years.” 432 Mich Opinion of the Court penalty in the maximum impose a which sentence imprisonment a minimum a with

is life years in the sentence. [MCL included same 769.9(2); 28.1081(2).] 683, 689-690; 199 Tanner, 387 In (1972), that a sentence found this Court NW2d significant not a if there is indeterminate” is "not interval between maximum minimum and the manslaughter guilty pled had Tanner sentence. 179 to term of from sentenced had been and prison. found such a Court This 180 months explaining: lawful, not to be us couched Though question comes to involves, discretion, it clearly terms of abuse of to, legal purely ourselves and we address sentence is defendant’s proposition fact "indeterminate” sions whether provi- contemplated as 769.9; MSA 28.1080 and of MCL 769.8 and 28.1081. involving Having plethora of cases before us days period of between with a but sentences maximum, are constrained we minimum though technically providing some observe that period, brief, though which correction within vested may exercise the discretion

authorities them fail Legislature, sentences such purpose comply the clear intent with act. indeterminate Thus, in- precise proposition turning volved, days that 30 is not are convinced we guarantee of time to sufficient corrections interval exercise authorities will be able to any practical- judgment with jurisdiction their judicial limitation ity. The net effect of such severe is to frustrate indeterminate on sentencing. of indeterminate intended effect are, with too that a sentence as we

Convinced v Moore Opinion op the Court between minimum and maxi- short an interval indeterminate, sen- mum is not tence which two-thirds of to we hold exceeding provides for a minimum failing improper the maximum is as comply the indeterminate sentence act. with [Id. at 689-690.] case, present In the the entire interval between minimum sentence and his maxi- defendant’s mum sentence is certain to occur after his death. Tanner, therefore have clearly Even more than we is not indeterminate.14 before us a sentence Legislature only person The has authorized murder be sentenced to convicted of to an indeterminate life in prison years. Legislature The has not authorized such a be, effect, sentenced to a flat person years. ELIGIBILITY FOR PAROLE

C. noted, in this As we have the 100- to purpose case stated that clearly this defendant 200-year imposed upon parole. The possibility foreclose that, concern was if he were to sentence judge’s term, the defendant to a life the defendant would eligible eligibil after ten This parole law, in the lifer ity is stated so-called 28.2304(4).15 791.234(4); sentencing judge MSA slight At had a actual interval his mini least Tanner between mum sentence and his maximum sentence. prisoner A under sentence for life or for a term of prisoners prisoners than sentenced for life for murder in the first other degree a minimum term and sentenced for life or for offense, imprisonment major controlled substance who of has served 10 calendar subject to the of the sentence is parole jurisdiction parole may and be released on board following subject conditions. board [MCL 791.234(4); 28.2304(4).] op Opinion the Court sought rely upon Proposal b16 and the instead legislation,17 provide accompanying that a which may person offense convicted of an enumerated person paroled served the until not be imprisonment, less available minimum disciplinary credits.18 a Parole Board19 has established procedures eligibility exception has established granting paroles.20

criteria for With person major convicted of a controlled sub- any person offense, to a term of stance sentenced jurisdiction years eventually falls within years may Board after ten and be released Parole on parole in accordance with statute: a term prisoner

A under sentence for life or for for prisoners other than for life of murder sentenced degree prisoners in the and sentenced first imprisonment life or for a minimum term of for offense, has major controlled substance who for subject years 10 calendar of the sentence is served parole may jurisdiction of the be to released on board board, parole parole subject following conditions: (b) granted parole prisoner A so shall not be hearing in the public until held sentenced manner after prescribed pardons for and commutations given public hearing .... Notice shall be judge’s in to the or the successor 16 general approved Initiated law of at election November 7, 1978. birthday 28.2303(l)(c), will not cause defendant’s 428 Mich MCL 791.233 et MCL The when 791.232; MSA 408, 422-427; 791.233b(n), 791.233(l)(c), life. MCL 28.2304(1). his he was minimum sentence in seq.; 800.33(5); this case was within a month of his 410 NW2d 28.2302. sentenced. MSA 28.2303 MSA Accumulating disciplinary 28.1403(5). 791.234(1); MSA et expire prior seq. Cf. People Fleming, to the end 28.2303(3)(n), thirty-fifth credits People v Moore Opinion of the Court office, parole granted if shall not be the sen- office,

tencing judge, judge’s or the successor granting objections pa- files written role within 30 hearing. of the

days receipt of the notice of objections part The be made written shall prisoner’s file. (d) parole granted A shall be under this prisoner subsection in the case of a who is other- prohibited by parole wise law from consideration. cases, procedures In par- such the interview [for dons and 791.234(4); shall followed. commutations] [MCL 28.2304(4).] Legislature persons The has stated that con- given victed of murder are to be prison either a sentence of or a term of years. explained above, For the reasons a term of years is an indeterminate sentence less than life. provided persons sen- eligible tenced to life or to a term of parole are people consideration ten enacting Proposal effectively state, modi- b provide person fied the lifer law to that a sen- tenced to a term of for an offense listed in Proposal eligible b would not become until the minimum term was served. Neither the Legislature people, however, nor the have author- imposition nonparolable ized the of a Legis- There is no indication that either the people lature or the intended such a drastic change sentencing in law. Appeals

The Court of has well stated the law supra Moore, Oscar at 386-387: Legislature The has mandated life sentences murder, ,750.316; 28.548, first-degree MCL MSA offenses, major and certain controlled substance 333.7401(2)(a)(i) 333.7403(2)(a)(i); MCL MSA 14.15(7401)(2)(a)(i) 14.15(7403)(2)(a)(i). The so- 324 311 op Opinion the Court serving persons the the "lifer law” excludes

called these from mandatory life sentences for crimes 791.234(4); parole MCL jurisdiction of the board. 28.2304(4). 333.7401(3); MSA See also MCL MSA 14.15(7401X3). statutory are to similar We unable locate a of life without authorization for for sentence conviction, robbery an armed however. While may policy, up public such the Legislature power. People be a desirable is a to authorize such sentence. sentencing the source of a court’s Moore, App Mich v [Roosevelt] (1974). 48, 54; 214 As we are unable to NW2d any legislative result discern authorization sentence, must conclude that of defendant’s we given not valid. was law, we In of the lifer considering effect sentencing court has failed believe 791.234(4)(b); appreciate fully 28.2304(4)(b), gives judge, judge’s which office, a parole. a veto There is successor over great coming under prisoner difference between a Board, pris- of the Parole and a jurisdiction v People receiving actually parole. oner See (After Remand), Hurst 169 Mich App employed The extreme measure NW2d (an attempt impose nonparolable in this case a term years) determinate (and unnecessary. simply successor) authority have the lawful judge’s preclude parole person for a sentenced to prison.

D. DISCRETION SENTENCING Coles, 523, 550; 339 NW2d In (1983), may court appellate we held court’s exercise of discretion "review trial sentencing.” say went on to relief would We v Moore Opinion Court only court, be afforded "the impos- where trial in sentence, ing the abused its discretion to the ex- tent it shocks the conscience of the appellate court.” present case,

In the the defendant argues the appellate conscience should be shocked length of the defendant’s sentence. We are shocked, and we do not find the length effective (life this imprisonment) to an abuse sentencing the trial court’s discretion.21 We nevertheless believe sentencing judge abused his discretion in this case. Sentencing importance. is an event of critical A must judge enter, consideration, after careful order. just when Even emotions understandably properly are running high, judge must faith- discharge fully exercising difficult task of judge give discretion. The must a sentence that fits the offense and the offender. case,

In this the sentencing judge has abdicated his discretion an by entering impossi- order that is obey. ble to The defendant has committed terri- ble crime and must serve a lawful sentence. Whether sentenced in prison serve life or a term of years prison, obliged the defendant is obey the order the sentencing and the subsequent dictates the Parole Board. This de- fendant cannot serve a minimum sentence of 100 years prison because he will die first. Neither can he serve a maximum of 200 prison.

This been sentenced to serve prison. impossible It is for him to obey It as if order. he had been ordered jump off ground and not come back down. Such a only subject sentence serves much already that, case, range note We in this the recommended sentence sentencing guidelines prison. in the found includes life in 432 [May- Opinion of the Court judge’s to further ridicule. maligned system understandable, judi- the but awesome outrage is must be and orders power judgments to enter cial or is A order judgment with discretion. employed edito- for an emotional appropriate not an case judge opportunity rial It is not statement. press the of the the benefit display to might court on crime” the be. "tough how public remand, court must enter an order the trial On possible obey. that is to is an abuse of sentenc- in this case

The sentence The lifer law regard. ing discretion one other person for a sentenced that clearly provides alia, upon inter imprisonment dependent, to life sentencing judge judge’s or the approval the from 100 to By entering successor. sentencing in this prison, judge the the defendant effectively case has sentenced However, form of this life sen- imprisonment. own future only judge’s tence forecloses discretion, has foreclosed his suc- but exercise exercising the discretion cessor office from provided cases clearly person convicted of murder where imprisonment. to life is sentenced it is Legislature, appropri- As recognized by (or for the ate at time successor) position take judge’s person about who has been court knows more than the Pa- imprisonment to life does sentenced power Board, exercise the accordingly role discretion, parole. It is an abuse of of veto over however, day enter an order on sentenc- all future exercise ing forecloses effectively either provided discretion Legislatively such No one judge’s Board or the successor. the Parole clarity. future with such can see the People v Moore op Opinion the Court E. OF SEPARATION POWERS 3, Const provides art powers § one branch of government are not to be exercised another: powers government are divided into three

branches; legislative, judicial. executive and No person exercising powers of one branch shall exer- powers cise properly belonging to another branch except provided as expressly in this constitution. The head of the government Executive Branch of Governor,22 the has the who exclusive power to grant commutations, reprieves, pardons.23 Department of Corrections lies within the Execu- Branch,24 tive and the placed Parole Board is within the department.25

This Court has it made clear that defendant cannot come to the parole courts for a when the Parole unwilling Fox, Board is to act. 312 577; (1945). 732; Mich 20 NW2d 168 ALR 703 argues principle same should obtain where the interests are parties re- versed—that a trial court should not be able to enter order anticipatory precluding process.

We it unnecessary find to resolve this constitu- being tional issue. There legislative no authority for the trial impose court a nonparolable deter- minate a term is unneces- for us sary to determine whether the sentencing judge’s order in this case violates the constitution. Corrections, 28.2271. Const Const Const 791.232; 1963, 1963, 1963, art art art 5, 5, 2, 5, 183, 190-193; 1.§ § 28.2302. § 14. See ¶ MCL Oakland 305 NW2d 515 16.375, Co 791.201; Prosecutor v MSA 3.29(275), Dep’t 432 Opinion of the Court OR UNUSUAL PUNISHMENT

F. CRUEL argues in this the sentence The defendant punishment, cruel or unusual amounts to case violation resolution sary Again, 1963, 1, § our 16. of Const art it unneces- renders of the other issues question. that constitutional to reach iv Having has im- the trial court determined posed not accord with a sentence that does Legisla- practices established trial court ture, this case we must remand guide imposition a new To sentence. for the remand, direction offer additional court on we trial regarding in this of a lawful nature case. thirty- he informs us that

The defendant he offense and when he four when committed reports expectancy the life He was sentenced. age, gender, person 34.5 and race is of his of a sentencing, and that he date of from the year might expect to live until about thus 2020.26 would facts considered He like these imposition the sentence. supra Moore, at the Court

In Oscar Appeals must held that an indeterminate a defendant’s consideration of fashioned with "be expectancy as deter at the time life by judge.” dissent, however, mined the trial equal if "cannot a term warned expectancy, particular defendant’s exceed a attorney actuary, every every will will be every physician, at will be and abe sentencing day.” Id. at door on death’s 395. his minimum sentence will observes that The defendant further credits, might that, disciplinary he year expire get and with in the early year 2068. out as as the People v Moore Dissenting Opinion Boyle, J. opinion, For reasons stated earlier this we years” hold "term of that a must be an indetermi- something nate less than life. It must be reasonably possible actually that is a defendant to serve.27 rigid adopt cap decline, however,

We either a on indeterminate sentences or a rule that a trial court must make a factual determination of a particular expectancy. defendant’s actual life Oth- only erwise, evaluating trial court would not find itself health, a defendant’s actual state of but reviewing expectancies would find itself the life demographic subgroups, family histories, health acquiring illnesses, and behavioral risks of certain such as cancer and heart disease. simply

Instead, we direct the trial court to fash- ion a sentence that a defendant in his mid- to late- prospect actually thirties has reasonable serv- ing. The effect defendant’s first sentence being prison, may, life in trial court on re- impose mand, a life sentence or an indeterminate requests The defendant a resen- we order tencing judge. before a different no We see reason to enter an order in such this case.

The defendant’s conviction is His affirmed. sen- vacated, tence is case is remanded to the proceedings trial court for further in accordance opinion. with this JJ., concurred

Levin, Brickley, Archer, J. Cavanagh, with (dissenting). separately

Boyle, I write because era, Writing another this Court once said that "[w]here punishment for an offense is for fixed to be average judge, beyond period never it should be made to extend life, persons years.” prison twenty-five which exceeds 29 Peo seldom 10, 17; ple Murray, 40 NW 432 Mich by Dissenting Opinion Boyle, J. opinion’s disagree respectfully the lead

I with of 100 that the defendant’s sentence conclusion second-degree unlawful. murder was provides is murder The statute punishable by imprisonment of term for life can the defendant is whether issue Court can sentence, but whether serve lawfully impose "with follows it. conclusion syllogism”1 simplicity Aristotelian the force and Legisla- that ture. the sentence was authorized Having People Johnson, 421 Mich v decided (1984), produced the which anoma- 364 NW2d 654 Proposal b for a lous that a life sentence result may actually be for less than offense that a term now concludes Court is must than life. The conclusion be less impermissible founded on the unarticulated premise probably serving will a life sentence that an inmate Fleming, paroled. People 408; 410 NW2d 266 impulse motivating understandably, More misguided attempt opinion may well be serving mitigate disparity between those lengthy indetermi- terms and those sentenced today’s fact, however, In result nate sentences. runs counter that "Neither is served when lar offenses receive dissimilar philosophy of sentence reform justice appearance justice nor the committing

similar offenders simi- Michigan sentences, Sentencing Purpose.” Guidelines—Statement a matter of law that The court now declares as older offender than a must receive different sentence younger who has committed a offender similar offense. majority im- offended the sentence

If the Moore, 378, 394; App People 417 NW2d 508 v Oscar J., (1987) (Tahvonen, dissenting). v Moore Opinion by Dissenting Boyle, it posed, ought say to so the forthrightly under Coles, People v "shock the conscience” standard of (1983).2 523; Instead, Mich 417 339 NW2d 440 the majority Legislature shifts the responsibility to result it the wishes achieve.

The factor motivating this sentence was the judge’s trial of much determination how time he thought the defendant should actually serve prison. Legislature foreclosed this not option. would

I affirm the decision the trial of court and Court of Appeals.3 the

i was charged first-degree with 2People Appeals v Coles led has not this Court or the Court of many appears find sentences that "shock the It conscience.” that trial are, exceptions, imposing courts with few sentences which are in has not in not context practice accomplished offensive. If the standard shock-the-conscience sentences, seemingly reduction of is because template the selected not fit the does facts reviewed. punishment proportionate would We also find that the to the punishment. crime and does not cruel or constitute unusual Helm, 277; An examination of all the factors in Solem v US 3001; (1983), require finding 77 L S Ct excessive Ed 2d does not a punishment case, punishment in this case. The in this while admittedly strong, murder of which criteria, disproportionate is not to the violent and brutal addition, guilty. In the defendant was found other disciplining wrongdoer, protection society, such as the the offenses, committing deterrence of others from like must be taken Snow, into account. 194 NW2d 314 Second, contrary majority’s "[njeither assertion the Legislature nonparolable people imposition . nor the . . have the a authorized 323) (ante, p Legislature years” the or that did law, change not intend a drastic precisely we believe this is Legislature enacting "Proposal what the intended in b.” 28.2303(3)(b). 791.233b(b); MCL foreclosed As the itself has parole prior to service of the minimum for "Pro- offenders, posal considered statutory a within limits cannot be b” usurpation authority. a Parole Board’s Further, infringement by upon legisla- judiciary there is no a Legislature by expressly tive function since the sentence statute authorized here, imposed range "any years.” within the that is Thus, imposition usurp as the sentence either the does authority Legislature, Board’s that of Parole not sentence does separation powers doctrine. violate [May- 432 Dissenting Opinion Boyle, J. death girlfriend former stabbing

murder4 for his also was 25, The defendant February on 1985. during the of a firearm charged possession with felony.5 of this commission trial, con defendant was Following jury felony-fire and of victed of murder6 31, 1985, to a on arm. was sentenced October He murder con term for the 200-year prison 100- to two-year consecutive mandatory viction and conviction. felony-firearm sentence for the the victim trial At it was established February her fiancé on at her home with at approxi- The victim’s fiancé testified 1985. up driveway pulled five o’clock a car mately out of getting the recognized person and that he the defendant’s car as the defendant. While the car, came to the defendant sister remained the door, the and called out the porch, knocked on the speak to to name. The asked victim’s defendant victim, pictures he some that wanted saying the that, him belonged to and stated and albums to going me. I’m not do "I sister with got my opened victim the At the point anything.” door. out on step the victim to

The defendant asked him she would she informed porch the front where and went back immediately the pack up albums to then returned the the house. The defendant into got they of the car and both car, and his sister out the house. came into entered the the and his sister

When defendant room, home, living the and when remained they room, the the defendant came into the victim in the back. speak he her indicated wished 750.316; 28.548. 4 MCL MSA 28.424(2). 750.227b; MSA 750.317; 28.549. 6 MCL v Moore Dissenting Opinion by Boyle, The victim’s fiancé testified that he no said and opened up that produced the defendant the briefcase and gun yes. going stated, I’m "Oh jumped talk to her.” The off defendant then grabbed pulled couch and the victim’s hand and her into the bedroom.

Both the defendant’s sister and the victim’s they plead, fiancé testified that heard the victim kill "Please don’t shots and the victim me.” me.” The fired two "Somebody help

screamed, Medical documentation revealed the defen- times, dant stabbed victim seven either with a knife or a screwdriver. The evidence technician assigned to the homicide case testified appeared originated struggle bedroom, in the through hallway living then went room into the ending finally area, in the kitchen. The living apart walls, room which were eleven feet droplets had blood smears and on both sides walls, bedroom, as did the entrance hallways. itself, bedroom and the three-day jury After trial the the defen- found guilty felony- dant murder day 31, 1985, firearm. On October of sentenc- ing, pre- the trial reviewed the evidence sented at trial and the information contained in presentence According report. report, carry plan the defendant had intended to out this period over a of time. The defendant had threat- times, ened the victim a number of she and had changing tried her address on two occasions. thirty-four-year-old juve- defendant had history prior began age fifteen, nile that at three felony convictions, one and misdemeanor convic- presentence report tion. The stance of defendant’s revealed the circum-

prior robbery armed convic- entry apart- tion which involved forcible into an by Opinion Dissenting Boyle, one of its occu- rape robbery ment and a pants. noted: testimony and the know from evidence We given point the deceased must have at some that cower- physically position where she was

been fired, was At the shot that was ing down. least it traveled in a down- the direction that fired ward hand, fashion, believe, grazing scalp, I and the entering into the dresser drawer. and then by the trail blood from know We throughout the kitchen that she and into bedroom escape Mr. fleeing from Moore. trying Mr. did in fact mutilate And we know that the deceased Moore stabbing by times. her some seven appellate court would I don’t know what just I of recitation other than what way need stated, nature deserves but a heinous crime in order deter others a substantial sentence as Moore will do it courts life sentence punishment hope Mr. straight out position society in a to be be appellate again in this life. Because the point that in of fact a of our state have said him to for this sort of crime allows years, I utilize in ten intend to numbers reviewed requires law the belief that with eligible for you before become numbers be served review. to 200- sentenced to a 100- The defendant was term, and, on the sentence was prison appeal, year Court of Appeals.7 affirmed

ii LEGISLATIVE AUTHORITY to MCL pursuant was sentenced The defendant Moore, per unpublished Timothy opinion curiam 89319). 19, 1987 (Docket February Appeals, No. decided Court of v Moore Dissenting Opinion by Boyle, J. 28.1081, 769.9; section relevant of which provides:

In all cases the maximum where sentence imprisonment of the may discretion court be any life or years, may number or term of the court impose may impose a sentence for life or a sen- any tence for posed term of If the im- the court is for any term of court fix shall both minimum and the maxi- mum of that thereof, years terms of or fraction imposed so sentences shall be consid- ered indeterminate sentences. The court not shall impose sentence in penalty which the maximum imprisonment minimum is fife years with a for a term of [Emphasis

included in the same sentence. added.] majority face, "[o]n states that its the stated ('life,

penalty murder or years’) years indicates that terma is a penalty p Ante, lesser than life.” 317. The statute obviously does not mandate on its face must be a term less life. than given

It is well established that words should be ordinary meaning: their It elementary meaning is of a statute

must, instance, sought in the first in the lan- guage framed, in which act is and if that is plain, and if the law is within the constitutional it, authority law-making of the body passed which the sole function of the courts is to enforce according States, to its term. v United [Caminetti 470, 485; (1917).] US 37 CtS 61 L Ed 442 language of the statute does evidence an The intent on the part to confine a sentence of to terma less than the expectancy. defendant’s life Mich Dissenting Opinion Boyle, adjective "any” as word The use specification . . . or more without as "one defined in whatever great quantity number, small; or (rev College Dictionary House The Random some.” ed, 1975), ordinary meaning p then of The 61. years,” simply "any,” "term of used to describe Legislature not lim- has indicates the obvious: judge term of as to the duration of the ited the meaning phrase "any plain years.8 term of years” years limitation as is a term of without of to duration. opinion that the use of the

The lead asserts "any term "life” and "or” inserted between word mutually years” are alternatives that of indicates types concluding exclusive,9 of sen- "there are two upon person may impose that a tences of murder—a sentence of convicted life years prison, in a sentence of a term less or p Obviously Ante, the terms are 319. than life.”10 only "mutually that a in the sense exclusive” may to a sentence an individual court both years. It does not of life and a term of term 8 opinion usage Although in found mandatory term of mum sentence referred to the mini-

imposed, requiring thus a minimum year day. Blythe sentence of at least a and a is inapposite p Id., to the case before us.11 433. People Johnson, 494,

Nor does v 421 498; Mich (1984), support 364 NW2d 654 this conclusion. In holding Johnson, this Court discussed the supra, Blythe, and observed that the "sentence concepts 'any years’ mutually 'life’ and term of are (in sentencing judge may exclusive and a appropriate case) opt for either but not both.” This observing statement was made in the context of imposed if a life sentence was there could be years, concluding no minimum term then that "Proposal only since mandated that a defen- b” imposed dant serve the calendar minimum term opinion language In a unanimous the Court held: 'for life "[T]he years’ may or for refers to the maximum sentence which imposed robbery for be armed and that this statute does not include a supra, mandatory non-aggravated Blythe, minimum for the offense.” p 437. 432 Mich Dissenting Opinion Boyle, parole, being eligible for the court before applied only a life se to determinate

lifer law nten MCL ce.12 28.230(3). 791.233b; MSA life under held a sentence Since Johnson subject Proposal law, to the lifer a "life” b was potential require to a now carries years, very than a shorter sentence anomaly despite However, here observed. the trial court holding that a sen Johnson’s eligible "Proposal b” a offense is tenced to life for opinion parole years, the lead now after ten greater penalty is a a of life holds that than implying life is the most a term of imposed.13 penalty be This conclu that can severe sion focuses sentence, and on the function of the serving incorrectly that an inmate assumes paroled. support probably will the There no paroled, assumption. If a life inmate is not his identical to defendant’s. If a life sentence is paroled, is less than Mr. inmate is Moore’s. flawed, his sentence assumption only logically Thus, the is not speculation to on as how the it is based a actually operate, system consideration will impos impermissible as factor Court held ing p People Fleming, supra, 425. v a sentence. 12Then, now, People agree reached in we with conclusion as Cohens, (1981), App intent 314 NW2d 756 Legislature enacting Proposal b "was to restructure the policies minimum defendants would serve their full ensure that Johnson, supra, p when of one of the listed offenses.” convicted J.) (dissent explanation Boyle, is no There reasonable 500 support only intended restructure conclusion parole policies regard "Proposal b” to a term offenders sentenced Moore, unpublished Supreme See v Oscar order (Docket 82069), Court, abeyance held in March No. dated present pending case. decision Moore, Appeals upon majority built the 'any In Oscar the Court of Johnson, noting opinion supra, 'life’ “[i]f concepts, years’ mutually Court’s that the are exclusive statement years’ 'any imposition 'any of must mean of number latter allows number ” Moore, Ante, citing p years of than life.’ Oscar less p supra, 389. People v Moore Dissenting Opinion Boyle, mandated parole granted prisoner shall not be to a sen tenced for the of a commission crime described in 33b(a) (cc) prisoner section until has served imposed by the minimum term the court less an for disciplinary prisoner allowance credits .... A eligible described this subdivision is not for special parole.[14] 791.233(1)(c); MSA [MCL 28.2303(1)(c).] If it is true that life is more severe than a term despite Legisla then, of of mandate "Proposal ture that a b” offender serve the calen prior being eligible dar minimum considered for parole, defendants sentenced to indeterminate presumably only terms must be sentenced to a years life, less than but it should follow eligible parole prior that defendants should be for years to the service of ten their calendar mini necessarily term, mum since a term of must penalty imprisonment.15 be a less severe than life 14Although "non-Proposal eligible special pa b” offenders are for role, prior expiration release of their minimum terms of imprisonment sentencing judge, gives whenever the his successor approval, 791.233(1)(b); 28.2303(1)(b),"Proposal written offenders cannot prior b” paroled, sentencing judge approves, even if the serving Michigan Department the calendar minimum. 45.14, 1988). Policy (August, Corrections Directive Habitual Offenders example problems As an the Johnson decision has (After wrought, People Remand), App see v Hurst 169 Mich (1988). initially Appeals NW2d dant’s sentence eighty The Court of vacated the defen prison forty of concurrent terms sentences Hurst, resentencing. remanded See App 573; 400 NW2d 685 person given lengthy The reason for if a remand "Proposal significantly indeterminate sentence for a worse off b” violation was "life,” purposes than an offender sentenced for consideration, imposed reviewing then the sentence would shock the Hurst, supra, App court’s conscience. 161. While Court alternative, concluded sentence for life was the better the trial life, had resentenced the defendant to concurrent terms thus found the shock Court sentence did not its conscience. 169 Mich App 168-169. Mich 311 432 Opinion by Dissenting Boyle, to the to contrary, despite protestations Finally, lead of as the years limit on the number impose a sentencing require suggests would opinion upon life compute expectancy a criminal’s court health, family his age, physical of the basis years is the maximum If tory. statute, term would the maximum violates life computed expectancy less than this have be Tanner, People 387 Mich then under (1972); the would have to court 199 NW2d the one-third/two- computation, final perform formulation, mini which would become the thirds inconsis This is also procedure mum sentence.16 mini guidelines which recommend a tent with People v Bro up prison. to life mum 343, 355; 408 den, This NW2d essentially require every court would procedure actuary: as an function person a who has fore example For [take] age years at the of 45 sight commit a murder genetic current history, a to his his old and due diet, span life projected physical health and The maximum term of then years. of appropri years. than 10 have to be less

would ate in a minimum term six the net result the then result computation under Tanner would This would have eliminating any discretion from sentencing judge "any years” if Indeed, to be less than life. murder determined committed his by a defendant who has outlived expectancy punishable would be individual only at all. Life would be permissible portion eliminates a sentence. This Legisla penalty provision the ture and would have eliminating established impermissible result exercise of discretion the trial court’s required by which is statute. age guidelines do not include as variable. age Nonetheless, today’s decision is to mandate that the effect of when it benefits defendant. considered v Mooke Dissenting Opinion by Boyle, J. example opinion’s The above assumes the hold- ing refers to the maximum term. On other hand, if it is the minimum term of the sentence significance majority is of the trial presumably court must also use actuarial tables to impose greater a minimum no than two-thirds expectancy.17 the defendant’s life Whether the by majority term addressed is the the minimum or maximum,18 the the observation is well taken that opinion impo- the of inevitable direction the the is 17Regardless prior of a defendant’s crime, criminal record and the serious every of nature defendant’s sentence if we the this Court would be forced to review adopt interpretation proposed to were the by opinion, is, years may the lead that that a for a term of expectancy. not exceed a defendant’s life granted People the People While Court leave v and v Moore legality imprisonment to very Milbourn review the of of sentences for long in being of abeyance terms there are cases held in for Moore twenty fifty, which defendants have been sentenced to terms of to fifty, thirty twenty-five that, fifty years, to and to on the basis for example, age sentencing because of the defendant’s at the time or of history problems, the fact that the defendant a of has heart these expectancy sentences which the exceed defendant’s life are unlawful. (Docket People 83516) Golidy (the long See No. defendant had a history sentenced and of illegal gambling drug dealing, involvement in and was twenty fifty years delivery to for of a controlled substance being sentenced); fifty-three an habitual and offender when (Docket 84881) People thirty assault and the sentence because he was (the defendant, v Walker No. to sentenced fifty years robbery, twenty-five fifty years to for a bank to for mandatory felony-firearm, challenged term for his forty-four almost at the time (Docket 82666) (the problem); People a and has heart v Wilkins No. defendant, firearm, defendant, felony- convicted of with assault intent to and murder seventy-five fifty years. was sentenced to to one hundred This thirty-one years age, at been convicted of had ten prior juvenile contacts); and felonies that or to had ten eleven (Docket 83289) (the raped v Lowman No. defendant who the victim at record, knifepoint lengthy a had criminal rob the last conviction being fifty- armed, for assault with intent to while was sentenced ato term). hundred-year prison one to opinion regarding The discussion in the lead the Parole Board’s jurisdiction once the defendant served the minimum term of his significance sentence indicates it is the minimum term which is of to Johnson, holding. Ante, pp supra, the 322-324. The dicta still requires a to serve the minimum term of his sentence. It ought minimum term and not the significant portion follow that to then the of the sentence is the long As as minimum maximum. imposed expectancy, is less than the defendant’s life the defendant Opinion Dissenting Boyle, for major- determinate sentences

sition of of the elimination offenders ity serious penalty provision portion indeterminate Legislature. established Johnson in its dicta recognized This Court to a defendant apply the lifer law does Proposal years sentenced b prevent b is Proposal purpose offense. The illogic majority in the The ultimate early release. contrary it is result is to conclude impose legislative will b was enacted Proposal when precludes If the parole. purpose precluding early authority restrict wished disciplinary increase modify Proposal could b, "lifer law.” To conclude that credits, modify is "unnecessary” simply are terms of given the sen- authority given to very to frustrate Legislature. tencing judge by Therefore, of the statute language because interpretation is neces- unambiguous, judicial no to 200 the of 100 would find sary. We statutory limits which authorize years within of "life” sentencing impose to judge term "any years.”

iii ABUSE OF DISCRETION appellate may court Michigan Under law the time and there would be some within could serve the minimum term jurisdiction. disparity- Parole Board could exercise which the Proposed requires exist because b observed in Johnson will still the lifer law has not been of the minimum sentence and service parole eligibility disparity between life and to eliminate the amended Note, Proposal lifer b on the indeterminate The effect an sentence. law, 65 U D L R People v Moore Dissenting Opinion Boyle, J. review a trial court’s exercise of discretion in sentencing provide and will relief the defen- only dant in those instances in which the sentence appellate "shocks conscience of the court.” supra, agree Coles, 550. We with the opinion conclusion reached in the lead that as the reviewing shocked, court we are not and thus do length not find effective of this sentence to be sentencing an abuse of the trial court’s discretion. p Ante, 325. disagree

However, we with the conclusions also opinion reached the lead judge by entering his abused discretion an order impossible obey, for the defendant effectively his, one which foreclosed or his succes- regard sor’s, future exercise of discretion in granting approval parole prior to the service of pp Ante, defendant’s minimum calendar term. 325-326. It cannot an be abuse of discretion do Legislature what the authorized, nor can abuse discretion to the discretion foreclose the Parole Board when the has author- by mandating ized foreclosure that a defendant serve the calendar minimum of the sentence. repeat,

To the issue is not whether actually imposed by can serve the sentence court, trial but rather whether the court has authority impose lawful the sentence. The sen- tencing judge imposed stated the sentence on de- designed fendant Moore was that the defendant so prison during would be released from his "[b]ecause life. natural noted that appellate courts of state have said that our point of fact a life sentence for this sort of crime [the defendant] allows to be ten reviewed I intend to utilize belief that numbers with the the 432 Mich 311 by Dissenting Opinion Boyle, be served before the numbers requires

law eligible for review.”19 become you Coles, supra, v a sentence must Under relationship legitimate to a bear a reasonable the sentencing judge trial stated goal.20 The 200-year of the 100- to purpose for provided thus a rationale parole foreclose and relationship the which bore reasonable the crime committed shocking, by heinous an not constitute defendant.21 The sentence does the court’s because abuse of the trial discretion the avoidance of legislative referendum authorized lifer law.22 the action opinion’s

The lead assertion precluded or his successor judge the trial the early opportunity deny approve from The itself release is incorrect. simply enacting the court’s discretion precluded b” of- legislation "Proposal declares which ineligible parole.23 for In special fenders are case, was convicted of defendant murder, Thus the b” offense. defen- "Proposal prior serving dant not released could be 19Although must serve the calendar minimum a defendant disciplinary sen minus tence, credits when sentenced to indeterminate eligi may imprisonment, if sentenced 28.2304(4). 791.234(4); See for MSA ble People after ten Johnson, supra. v legal imposition within limits is not of a severe sentence error, concerned, every and standard insofar as punishment. v category Williams in a calls for identical offense like (1959). Oklahoma, 421; 576; S 3 L Ed 2d 516 358 US 79 Ct Appeals. panel affirmed the Court of The decision was shocking correctly trial nature noted that court considered crime, deterrence, society punish protect the needs to defendant. Martinez, See, App example, People 382 NW2d for noted, previously to an indeterminate a defendant sentenced As "Proposal minimum b” offense must serve calendar sentence term minus MCL special parole. eligible disciplinary credits and is not 28.2303(1)(c). 791.233(1)(c); People v Moore Dissenting Opinion Boyle, J. minimum, calendar with even 791.233b(n); judge’s approval. 28.2303(3)(n).

It an cannot be abuse of discretion to foreclose a sentencing judge’s situation, discretion such Legislature effectively here, as where the fore- judiciary’s closed both the and the Parole Board’s regarding prior serving discretion release Thus, minimum term. there is no basis for the opinion’s lead conclusion that the sentence of 100 to 200 constituted abuse the trial court’s discretion.

CONCLUSION might agree clear, To be while all with this authority sentence, the sentence was within the legislatively granted to the trial court. There is no support for the construction of the statute offered opinion. Accordingly, in the lead I would affirm opinion below. C.J., J., Riley, Griffin, concurred with Boyle, the lead notes 28.1084(2) 28.1084(1)(b) 769.12(2); 769.12(1)(b); and MCL MSA "any phrase persuaded them that "a term” and the has lesser years” interchangeably, may is for this conclu read there no basis be 319, Ante, p n 13. sion. 9 used, presumed in is it to be used term "or” is When the penal indicates disjunctive anything when statutes seldom sense and used 2d, permissible sentences. 21 Am Jur than alternative other Sands, Statutory Law, 540, p 897. also 1A Sutherland See § Criminal Construction (4th ed), 21.14, plain meaning p ordinary, 127. The § alternative, as limited to one two when used a noun is "a choice an or more supra, Dictionary, p possibilities.” 40. Random House (CA 589, 10, 1985), O’Driscoll, 761 F2d 597-598 States v United (1986). of of of the Court 475 US 1020 Tenth Circuit cert den prison eligibility years Appeals with that of 300 held a sentence statutory following years limits or not outside the discretion, it constitute illegal cruel 797 F2d 1335 nor did or abuse of the trial court’s Blackburn, punishment. Id. also Passman v and unusual See (CA 1986), (1987); 5, US United States cert den 480 (CA (1986); Rhodes, 4, 1985), 476 US 1182 F2d 1019 cert den v (CA 1986). 8, Armontrout, v 787 F2d 1262 Stevens v Moore Dissenting Opinion Boyle, J. logically years follow that a must be less logically years life; than follows that the term of equal life, could could to or be less than and that greater equal than to a term of any Thus, the terms authorized equals actual life. may itWhile be a truism to conclude that present years” alternatives, "term or "life” mutually choices are exclusive if one rejected, is chosen the other must be it does not follow that less one must be than the Id. other. conclusion, is There no basis for the alternative of "life” a "term than less life.” opinion As a basis for this conclusion the lead initially People Blythe, relies on p Blythe Ante, 339 NW2d 399 n 10. only question involved whether "life or years”

Case Details

Case Name: People v. Moore

Court Name: Michigan Supreme Court

Date Published: May 8, 1989

Citation: 439 N.W.2d 684

Docket Number: 80432, (Calendar No. 1)

Court Abbreviation: Mich.