PEOPLE v POTTS
Docket No. 88140
Supreme Court of Michigan
September 25, 1990
436 Mich 295 | 461 NW2d 647
Docket No. 88140. Decided September 25, 1990. On application by the defendant for leave to appeal, the Supreme Court in lieu of granting leave, affirmed the decision of the Court of Appeals.
Kathleen Potts pled guilty in the Jackson Circuit Court, James G. Fleming, J., of involuntary manslaughter and was sentenced to three to fifteen years in prison. The Court of Appeals, SHEPHERD, P.J., and DOCTOROFF and MARILYN J. KELLY, JJ., affirmed in an opinion per curiam, holding that the sentencing court did not err in applying the revised sentencing guidelines to the defendant‘s May 1988 offense because Administrative Order No. 1988-4 requires use of the second edition of the guidelines in every sentencing proceeding after October 1, 1988, and that the application did not violate the Ex Post Facto Clauses of the state and federal constitutions because the guidelines are procedural, not substantive (Docket No. 115480). The defendant seeks leave to appeal.
In an opinion per curiam, signed by Chief Justice RILEY and Justices LEVIN, BRICKLEY, CAVANAGH, ARCHER, and GRIFFIN, the Supreme Court held:
Administrative Order No. 1988-4 requires use of the second edition of the sentencing guidelines when sentencing a defendant after October 1, 1988. There is no violation of the ex post facto provisions where the enactment at issue alters modes of procedure rather than substantial personal rights.
1. The requirement that use of the second edition of the sentencing guidelines is mandatory as of the date that a sentence is imposed rather than as of the date an offense is committed is consistent with the manner in which the first edition was introduced and revised. Administrative Order No. 1988-4 does not entitle the defendant to resentencing.
2. There is no violation of state or federal ex post facto provisions. The guidelines are intended as a tool to assist a sentencing judge in the exercise of discretion. They convey no substantive rights and are procedural only.
Justice BOYLE, concurred in the result because (1) the defendant failed to object to the application of the second edition of the sentencing guidelines at her sentencing and did not file
Affirmed.
181 Mich App 311; 448 NW2d 820 (1989) affirmed.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jennifer A. Pilette) for the defendant.
PER CURIAM. The defendant pleaded guilty of involuntary manslaughter and received a prison term of from three to fifteen years. She seeks to be resentenced on the ground that the circuit judge erred in applying the revised sentencing guidelines of October 1, 1988, to her May 1988 offense. We are persuaded that there was no error.
I
The defendant was charged with open murder1 and possession of a firearm during the commission of a felony2 in connection with the May 1988 fatal shooting of her sixteen-year-old daughter. The incident occurred during an argument at the family home.
In September 1988, the defendant pleaded guilty in Jackson Circuit Court to a reduced charge of involuntary manslaughter,3 admitting gross negligence in the discharge of a firearm. In exchange
The defendant was sentenced on October 20, 1988, to serve a prison term of from thirty-six months to fifteen years. The minimum sentence was in the middle of the recommended range set forth in the second edition of the sentencing guidelines (twelve to sixty months). The second edition took effect October 1, 1988. Administrative Order No. 1988-4, 430 Mich ci.
The defendant challenged her sentence in the Court of Appeals. She argued that, since her offense was committed prior to the effective date of the second edition of the guidelines, the circuit judge should have applied the first edition. As scored by the defendant, the recommended minimum sentence under the earlier edition would have been only zero to thirty-six months. She contended that her actual sentence thus would have been less, since the circuit judge clearly did not intend to impose a sentence at the top of the guidelines.4
In an opinion per curiam, the Court of Appeals denied relief. 181 Mich App 311; 448 NW2d 820 (1989). The panel held that the sentencing court did not err in applying the revised guidelines of October 1, 1988, to the defendant‘s May 1988 offense. The Court reasoned that Administrative Order No. 1988-4 plainly required the use of the second edition in every sentencing proceeding after October 1, and that there was no ex post facto
The defendant asks this Court to overturn the decision of the Court of Appeals and to order that she be resentenced.
II
We agree with the Court of Appeals that Administrative Order No. 1988-4 required the circuit judge to apply the second edition of the sentencing guidelines when sentencing the defendant on October 20, 1988. The order states, in pertinent part:
Administrative Order No. 1985-2, 420 Mich lxii, and Administrative Order No. 1984-1, 418 Mich lxxx, are rescinded as of October 1, 1988. The Sentencing Guidelines Advisory Committee is authorized to issue the second edition of the sentencing guidelines, to be effective October 1, 1988. Until further order of the Court, every judge of the circuit court and of the Recorder‘s Court for the City of Detroit must thereafter use the second edition of the sentencing guidelines when imposing a sentence for an offense that is included in the guidelines. [430 Mich ci. Emphasis added.]
Our conclusion—that use of the second edition is tied to the date that sentences are imposed, rather than to the date that offenses are committed—is consistent with the manner in which the first edition was introduced and revised. This Court initially invited judges to use the guidelines, but did not require them to do so. See Administrative Order No. 1983-3, 417 Mich cxxi, which took effect May 1, 1983. We subsequently made the use of the first edition mandatory, effective March 1, 1984.
The first edition of the sentencing guidelines was revised several times. The State Court Administrative Office issued replacement pages that contained revisions dated October 1982, April 1983, April 1984, and October 1984. These revisions were given immediate effect by sentencing judges. Thus, we reject the defendant‘s contention that she is entitled to be resentenced because of Administrative Order No. 1988-4. Our inquiry does not end here, however.
III
The defendant also asserts that application of the second edition of the sentencing guidelines violates the proscriptions against ex post facto laws in the state and federal constitutions.
No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.
There are two relevant federal provisions.
No Bill of Attainder or ex post facto Law shall be passed.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. [Emphasis added.]
This Court has reviewed the history of these provisions. People v Stevenson, 416 Mich 383, 394, 399; 331 NW2d 143 (1982). We have recognized that, although the Ex Post Facto Clause does not apply directly to the judiciary, it applies by analogy through the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Id. at 395; Bouie v City of Columbia, 378 US 347, 353-354; 84 S Ct 1697; 12 L Ed 2d 894 (1964).
The United States Supreme Court considered the Ex Post Facto Clause in Calder v Bull, 3 US (3 Dall) 386; 1 L Ed 648 (1798). Justice Chase observed in that case that the term “ex post facto” predated the American Revolution, and explained his understanding of the laws which it precluded:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. [Id. at 390. See also Beazell v Ohio, 269 US 167, 169-170; 46 S Ct 68; 70 L Ed 216 (1925).]
In a series of more recent cases, the Court has set forth the test for determining whether a law violates the ex post facto provision. In Dobbert v Florida, 432 US 282, 293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), the Court said that there is no violation unless the law alters “substantial personal rights” as opposed to “modes of procedure which do not affect matters of substance.”7 In Weaver v Graham, 450 US 24; 101 S Ct 960; 67 L Ed 2d 17 (1981), the Court said that the law must be retrospective, i.e., it must apply to events occurring before its enactment, and that it must disadvantage the offender affected by it. More recently, the Court observed that “[t]he constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.” Miller v Florida, 482 US 423, 431; 107 S Ct 2446; 96 L Ed 2d 351 (1987). (Emphasis in original.)
IV
The defendant relies on Miller to argue that retroactive application of the second edition of the sentencing guidelines to her offense violates the ex post facto provision. In Miller, the Court considered a similar question with regard to Florida‘s sentencing guidelines. There, as here, the defendant‘s offense was committed when the original guidelines were in effect, but the defendant was
There are several important differences between the instant case and Miller. The most important, for purposes of our analysis, is that the Florida guidelines establish a presumptive sentencing range; a judge may depart from the guidelines only by giving “clear and convincing” reasons in writing. The only sentences that are subject to appellate review are those where there has been such a departure. Miller, supra at 426.
In Michigan, there is no such “presumptive” range. Judges are permitted to depart from the sentencing guidelines, and are required merely to explain their reasons for doing so. Further, all sentences are subject to appellate review. People v Coles, 417 Mich 523; 339 NW2d 440 (1983), People v Broden, 428 Mich 343; 408 NW2d 789 (1987),8 and People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
V
The differences between the Michigan sentencing guidelines and the Florida scheme are critical to a resolution of the ex post facto question.9
It cannot be said, therefore, that the Michigan guidelines convey substantive rights. Since there are no presumptive sentences, the guidelines as revised did not increase the punishment for the defendant‘s crime. Neither before nor after the revisions did the guidelines limit the discretion afforded the sentencing judge in this case by the indeterminate sentencing act.
After due consideration of the reasoning in Miller and of the principles set forth, above, we conclude that there was no violation of the ex post facto provision in this case. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we affirm the decision of the Court of Appeals.
RILEY, C.J., and LEVIN, BRICKLEY, CAVANAGH, ARCHER, and GRIFFIN, JJ., concurred.
(1) I cannot ignore the fact that the defendant did not object to application of the second edition of the guidelines at her sentencing, nor did she file any postsentencing motions in the trial court. Thus, she failed to properly preserve the error for appellate review. The failure of appellate courts to apply the raise-or-waive requirement invites appeals on the basis of afterthought, increases the costs of, and the burden on, appellate courts to correct errors that might have been remedied if brought to the attention of the trial court, and undermines the standard of practice of trial attorneys.
(2) The sentencing guidelines are not statutory enactments and do not have the force and effect of law. Thus, the Ex Post Facto Clause is not implicated.
Notes
Further, the Florida guidelines replaced that state‘s system of indeterminate sentencing. Id. The Michigan guidelines did not replace this state‘s system of indeterminate sentencing.
Still another difference is that revisions to the Florida sentencing guidelines, even though made by the Florida Supreme Court, take effect only when they are adopted by the Florida Legislature. Smith v Florida, 537 So 2d 982 (Fla, 1989). In Michigan, revisions take effect upon the approval of this Court.