People v. Martin , 257 Mich. App. 457 ( 2003 )

668 N.W.2d 397 (2003) 257 Mich. App. 457

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
George Henry MARTIN III, Defendant-Appellee.

Docket No. 243008.

Court of Appeals of Michigan.

Submitted June 10, 2003, at Detroit. Decided July 8, 2003, at 9:10 a.m. Released for Publication September 9, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people.

David S. Newman, West Bloomfield, for the defendant.

Before OWENS, P.J., and BANDSTRA and MURRAY, JJ.

PER CURIAM.

Defendant Gregory H. Martin, III, pleaded guilty to one count of larceny from a person, M.C.L. § 750.357. Defendant entered his plea after the trial court made a preliminary sentence evaluation^[1] that he would be sentenced to a "county jail" term, rather than imprisonment in a state prison. Ultimately, the trial court sentenced defendant as a second-offense habitual offender, M.C.L. § 769.10, to ten months' imprisonment in the Oakland County Jail. The prosecution appeals by leave granted. We affirm.

The prosecution contends that the trial court erred as a matter of law in sentencing defendant to a determinate jail sentence.^[2] We review questions of law de novo. People v. Riddle, 467 Mich. 116, 124, 649 N.W.2d 30 (2002). This standard of review also applies to our interpretation of the several statutes relevant to this case. People v. Jones, 467 Mich. 301, 304, 651 N.W.2d 906 (2002).

MCL 750.357 authorizes a trial court to sentence a defendant to "imprisonment in the state prison not more than 10 years." MCL 769.10(1)(a) provides that a trial court sentencing a second-offense habitual offender "may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than 1-½ times the longest term prescribed for a first conviction of that offense or for a lesser term." Thus, for violating M.C.L. § 750.357, defendant faced a maximum term of fifteen years' imprisonment.

Because the instant offense occurred after January 1, 1999, the trial court was required to sentence defendant under the legislative sentencing guidelines, M.C.L. § 777.1 et seq. MCL 769.34. Indeed, M.C.L. § 777.16r provides that the legislative sentencing guidelines apply to a violation of M.C.L. § 750.357. Here, the appropriate sentencing guidelines range was five to twenty-eight months' imprisonment. MCL 769.34(4) provides, in part, as follows:

(c) If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure:

(i) To imprisonment with a minimum term within that range.

(ii) To an intermediate sanction that may include a term of imprisonment of not more than 12 months.

Although inartfully drafted, this statutory provision gives the trial court discretion to either sentence a defendant to a term of imprisonment within the guidelines range or impose an intermediate sanction.^[3] Because defendant's sentencing guidelines range was five to twenty-eight months' imprisonment, M.C.L. § 769.34(4)(c)(ii) plainly authorized the trial court to sentence defendant to a term of imprisonment within the sentencing range; a term of imprisonment of not more than twelve months; or any other intermediate sanction. MCL 769.31(b) defines "intermediate sanction" as "probation or any other sanction, other than imprisonment in a state prison or state reformatory, that may be lawfully imposed." The subsection lists specific examples of an intermediate sanction, such as "[p]robation with jail," M.C.L. § 769.31(b)(iv), and "[j]ail," M.C.L. § 769.31(b)(viii). Therefore, whether based on M.C.L. § 769.34(4)(c)(ii) or M.C.L. § 769.31(b)(viii), the trial court did not err as a matter of law in imposing a ten-month term of imprisonment in jail.

However, as noted above, the prosecution contends that the trial court erred in imposing a determinate jail sentence for this felony offense. Indeed, we have held that a determinate jail sentence for a felony is improper under M.C.L. § 769.8, which provides that where a "punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment...." See People v. Austin, 191 Mich.App. 468, 469-470, 478 N.W.2d 708 (1991); see also People v. Weaver, unpublished opinion per curiam of the Court of Appeals, issued January 14, 2000, 2000 WL 33538581 (Docket No. 213501). However, those decisions involved sentences imposed under the permissive judicial sentencing guidelines, rather than sentences imposed under the mandatory legislative sentencing guidelines. By expressly providing for "intermediate sanctions" in a subcategory of cases with a relative lack of severity, our Legislature plainly created an exception to M.C.L. § 769.8 by enlarging the trial court's sentencing discretion including imposing "intermediate sanctions" for offenses that otherwise might have required imprisonment in state prison. MCL 769. 34(4)(c)(ii). Thus, while our Legislature enacted a statutory sentencing scheme that provides greater uniformity for sentences involving the most serious offenses and offenders, it also provided trial courts with greater discretion regarding sentences for offenses and offenders on the other end of the continuum. Therefore, were we to apply Austin and similar cases to our current sentencing scheme, we would negate our Legislature's attempt to provide the trial court with the discretion to sentence less serious offenders to intermediate sanctions.

In addition, we reject the prosecution's assertion that a determinate sentence was not an appropriate "intermediate sanction" because it could not "lawfully be imposed" under M.C.L. § 750.357, which expressly provides for imprisonment in a state prison. By its own terms, M.C.L. § 769.31(b)(viii) provides that "jail" is a lawful "intermediate sanction." Accordingly, the trial court's ruling did not negate any statutory language, but merely recognized that our Legislature created an exception in less serious cases. In other words, the trial court's ruling gave proper effect to M.C.L. § 769.34(4)(c). Consequently, the trial court did not err as a matter of law in imposing a determinate jail sentence. Riddle, supra at 124, 649 N.W.2d 30; Jones, supra at 304, 651 N.W.2d 906.

Affirmed.

MURRAY, J., (concurring).

We granted leave in this case to decide whether it is unlawful for a trial court to sentence a second-offense habitual offender to a straight jail term as an intermediate sanction under the statutory sentencing guidelines, M.C.L. § 769.34(4)(c)(ii). Under the controlling statutes, an indeterminate sentence must be imposed upon a second-offense habitual offender only when the court sentences a defendant to imprisonment for a "term of years," M.C.L. § 769.10(2), and therefore, a straight jail term is a permissible form of intermediate sanction under M.C.L. § 769.31(b). I write separately, however, to specifically address the prosecution's argument under M.C.L. § 769.31(b).

Resolution of this case requires us to apply several different provisions of our state sentencing statutes to the facts presented before the trial court, a task we perform utilizing a de novo standard of review. People v. Hegwood, 465 Mich. 432, 436, 636 N.W.2d 127 (2001). "In construing a statute, it is our obligation to review the words of the statute and give the words used their plain and ordinary meanings." Stone v. Michigan, 467 Mich. 288, 291, 651 N.W.2d 64 (2002), citing Herald Co. v. Bay City, 463 Mich. 111, 117-118, 614 N.W.2d 873 (2000). It is likewise our duty to read statutes dealing with the same subject matter in pari materia, that is, to interpret them consistently with each other, so long as the language in the statutes permit such a construction. People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998). It is equally clear that we must give effect to all words and provisions within a statute, so as to avoid a construction that renders any part of a statute nugatory. Pohutski v. City of Allen Park, 465 Mich. 675, 683-684, 641 N.W.2d 219 (2002).

There are several statutes that must be considered in resolving this issue. As noted, the maximum punishment for the felony committed by defendant is ten years in a state prison. MCL 750.357. However, because defendant is a second-offense habitual offender, M.C.L. § 769.10(1)(a) sets forth the additional sentencing options of probation or a maximum sentence of 1-½ times the maximum for a first conviction. This section provides, in pertinent part:

(1) If a person has been convicted of a felony or an attempt to commit a felony, whether the conviction occurred in this state or would have been for a felony or attempt to commit a felony in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows:

(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than 1-½ times the longest term prescribed for a first conviction of that offense or for a lesser term. [Id. (emphasis added).]

MCL 769.10(2) provides that if the court decides to impose a sentence of imprisonment for any "term of years" under 769.10(1)(a), the sentence "shall" be an indeterminate one:

If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or a fraction of a year and the sentence so imposed shall be considered an indeterminate sentence. [Emphasis added.]

In this case, rather than sentencing defendant to either probation (which could also include jail time) or an indeterminate sentence of imprisonment for a "term of years," the trial court sentenced defendant to a straight ten months in the county jail.

I agree that defendant was entitled to an intermediate sanction because it was stipulated before the trial court that his sentence was scored under the sentencing guidelines as five to twenty-eight months. MCL 769.34(4)(c)(ii) provides:

(4) Intermediate sanctions shall be imposed under this chapter as follows:

(c) If the upper limit of the recommended minimum sentence exceeds 18 months, and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure:

(i) To imprisonment with a minimum term within that range.

(ii) To an intermediate sanction that may include a term of imprisonment of not more than twelve months. [Emphasis added.]

However, "intermediate sanction" is specifically defined as "probation or any sanction, other than imprisonment in a state prison or state reformatory, that may lawfully be imposed." MCL 769.31(b) (emphasis added).

The question left unanswered by the majority is whether an intermediate sanction of straight jail time "may lawfully be imposed" when the habitual-offender statute requires a court to give an indeterminate sentence once the court decides to sentence a second-offense habitual offender to a "term of years." In my view, by giving effect to both statutory provisions, the answer is that a straight jail term can be lawfully imposed on a second-offense habitual offender.^[1]

The caveat within M.C.L. § 769.31(b) that the intermediate sanction must be one that can "lawfully be imposed" ensures that other sentencing provisions enacted by the Legislature for a particular circumstance are given effect. Thus, in this case, because defendant is a second-offense habitual offender, the trial court was required, when determining the lawfulness of an intermediate sanction, to consider the indeterminate sentence requirement of M.C.L. § 769.10(2). By doing so, the provisions within both statutes are given full effect. Webb, supra; Pohutski, supra.

As noted, under M.C.L. § 769.10(2), a court must only impose an indeterminate sentence if the court imposes a sentence that is for a term "of years." imposing a "term of years" is discretionary, which is made clear by both the language of M.C.L. § 769.10(2) ("If the court ...") and M.C.L. § 769.10(1)(a), which provides the court with the sentencing options of either (1) probation, (2) imprisonment, which can be for a maximum "term"^[2] of no more than 1½ times the maximum for a first conviction, or (3) imprisonment for a "lesser term."^[3] Thus, by following the plain, straightforward words of these statutes, it appears that the Legislature desired indeterminate sentences only when a court imposed a sentence consisting of a "term of years," M.C.L. § 769.10(2), but that a court could, in sentencing a second-offense habitual offender, impose a sentence of imprisonment for a "term," with the only caveat being that it not exceed 1½ times the maximum sentence for the first conviction.^[4]

In this case, the trial court did not sentence defendant to imprisonment for a "term of years," and, hence, the indeterminate-sentencing requirement was inapplicable. Rather, the trial court followed the applicable sentencing guidelines, which allowed for an intermediate sanction and which was lawfully imposed, because the court could impose straight jail time as a lesser "term" under M.C.L. § 769.10(1)(a). For these reasons, I believe the trial court lawfully imposed the sentence on defendant.

NOTES

[1] People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993).

[2] In contrast, an "indeterminate sentence" is one with a minimum and maximum term of imprisonment. Const. 1963, art. 4, § 45 states that our Legislature "may provide for indeterminate sentences as punishment for crime and for the detention and release of persons imprisoned or detained under such sentences."

[3] In contrast, M.C.L. § 769.34(4)(a) provides that where the upper limit of the sentencing guidelines range is eighteen months or less, the trial court must impose an intermediate sanction, absent substantial and compelling reasons to depart from the guidelines. If the scoring of defendant's prior record variables had been twenty less—which would have been the case but for his concurrent and subsequent convictions of other offenses—defendant's sentencing range would have been zero to thirteen months' imprisonment. If so, the trial court would have been required by M.C.L. § 769.34(4)(a) to impose an intermediate sanction. In fact, M.C.L. § 769.34(4)(a) provides that an "intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less." It logically follows that where, as here, the scoring of the variables suggests a more serious violation, our Legislature did not mandate an intermediate sanction, but instead an intermediate sanction, but instead allowed the trial court discretion to either impose an intermediate sanction or adhere to the ordinary requirement of imprisonment in the state prison.

[1] The majority correctly notes that the ten-year maximum sentence under M.C.L. § 750.357 does not render use of the intermediate sanction unlawful because the Legislature specifically included M.C.L. § 750.357 within the crimes to which the guidelines are applicable. MCL 777.16r. There is no such provision for habitual offenders.

[2] Not "term of years" as provided in M.C.L. § 769.10(2).

[3] Again, not for a lesser "term of years," but a lesser "term."

[4] The prosecution's reliance on People v. Bewersdorf, 438 Mich. 55, 60, n. 5, 475 N.W.2d 231 (1991) is misplaced, as the reference in footnote was dicta since the Court recognized the sentencing issue under M.C.L. § 769.10(2) was not raised on appeal.