448 N.W.2d 820 | Mich. Ct. App. | 1989
PEOPLE
v.
POTTS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
State Appellate Defender (by Jennifer A. Pilette), for defendant on appeal.
Before: SHEPHERD, P.J., and DOCTOROFF and MARILYN KELLY, JJ.
PER CURIAM.
Defendant pled guilty to a reduced charge of voluntary manslaughter. MCL 750.321; MSA 28.553. She was sentenced to three to fifteen years in prison. She appeals as of right, and we affirm.
Defendant was sentenced under the revised sentencing guidelines. She committed the crime prior to the revision of the guidelines. On appeal, she contends that the trial court's retroactive application of the revised guidelines misconstrues Administrative Order No. 1988-4, 430 Mich ci (1988), and violates the provision against ex post facto legislation. US Const, art I, § 10, cl 1, Const 1963, art 1, § 10.
Initially we note that defendant failed to raise this issue in the trial court. Generally this Court does not address issues raised for the first time on appeal. However review may be appropriate where a significant constitutional question is presented. *313 People v Calloway, 169 Mich App 810, 818; 427 NW2d 194 (1988).
Administrative Order No. 1988-4 provides that effective October 1, 1988, the trial court must use the revised guidelines when sentencing a defendant for an offense which they cover. Defendant argues that the court misinterpreted the order by applying the revised guidelines to an offense committed before October 1, 1988. We disagree.
The plain language of the order requires the use of the revised guidelines in every sentencing procedure after October 1, 1988. The previous administrative orders mandating the use of the first edition of the guidelines were rescinded as of October 1. The order is clear and unambiguous. See Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984).
Next, defendant contends that retroactive application of the revised guidelines violates federal and state ex post facto prohibitions.
A criminal law is ex post facto where it is applied to events which occurred prior to its enactment and where it disadvantages the offender affected by the law. Miller v Florida, 482 US 423, 430; 107 S Ct 2446; 96 L Ed 2d 351 (1987). Ex post facto prohibition applies to substantive matters, not to modes of procedure. Miller, 433. The prohibition serves two purposes: it restricts legislatures from enacting arbitrary or vindictive legislation and provides fair notice. Calder v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648 (1798); Miller, 429-430.
The Michigan sentencing guidelines do not increase the punishment for defendant's crime. They are a tool to assist the sentencing judge in the exercise of discretion. They do not convey substantive rights to defendant. People v Strunk, 172 Mich App 208, 210; 431 NW2d 223 (1988), lv den 432 Mich 883 (1989). They do not create presumptive *314 sentences. In fact, departure is encouraged. People v Ridley, 142 Mich App 129, 133-134; 369 NW2d 274 (1985). Further, all sentences are subject to appellate review. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987). Cf. Miller, supra.
We conclude that the guidelines are procedural rather then substantive. Therefore, the application of the revised guidelines after October 1, 1988, to a crime which occurred before their promulgation does not violate ex post facto prohibitions.
Affirmed.