People v. Schultz , 435 Mich. 517 ( 1990 )

Archer, J.

We granted leave to appeal to determine whether the defendants should be sentenced under MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) as amended subsequent to the dates their crimes were committed. We would affirm the judgment of the Court of Appeals.

i

A. PEOPLE V SCHULTZ

Defendant David M. Schultz was tried and convicted in the Oakland Circuit Court of transporting ten ounces of cocaine. On November 13, 1986, Schultz, a twenty-five-year-old Bloomfield Hills middle school teacher with no prior criminal record, was arrested at the home of Daniel Jamieson when the police raided the house after an undercover officer purchased cocaine from Jamieson.

Defendant was charged with the manufacture, delivery or possession with intent to deliver more than 225 grams but less than 650 grams of cocaine.¹ The prosecution’s theory of the case was that defendant aided and abetted Jamieson in the cocaine sale to the undercover police officer.²

At trial, defendant testified that on the night of his arrest, he was at his girl friend’s apartment when Jamieson telephoned. Jamieson asked defendant to pick up a package and deliver it to him. Defendant agreed. Jamieson arranged for a friend to place the package in defendant’s car, which was parked outside his girl friend’s apartment. Defendant then retrieved and delivered the package to Jamieson’s house. Defendant and Jamieson were arrested when the police raided the house after Jamieson sold cocaine to an undercover police officer.³

Defendant also testified at trial that, although he delivered a package to Jamieson, he did not know its contents. In contrast, a police officer testified that during postarrest interrogation,⁴ defendant told him he knew the package contained cocaine.

Defendant was convicted of possession of more than 225 grams but less than 650 grams of cocaine on April 28, 1987.⁵ On May 18, 1987, he was sentenced to twenty to thirty years imprisonment. As it existed at the time of defendant’s conviction and sentencing, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii), the sentencing statute, provided a mandatory twenty-year minimum term of imprisonment. The trial judge reluctantly imposed this sentence, noting on the record that the statute required the court to do so.⁶

Defendant appealed, contesting both his conviction and sentence. The Court of Appeals affirmed the conviction. 172 Mich App 674; 432 NW2d 742 (1988). The Court, however, remanded the case to the trial court for resentencing in light of 1988 PA 47, which became effective March 30, 1988, some ten months after defendant was sentenced. 1988 PA 47 amended MCL 333.7403; MSA 14.15(7403), the statute under which defendant had been convicted and sentenced, and reduced the mandatory minimum term of imprisonment from twenty years to ten.⁷ 1988 PA 47 also authorized the trial court to depart from the ten-year minimum term for substantial and compelling reasons.

The prosecutor subsequently filed an application for leave to appeal. We granted leave on April 11, 1989, to determine whether the Court of Appeals erroneously ordered the trial court to resentence defendant under MCL 333.7403; MSA 14.15(7403) as amended by 1988 PA 47. 432 Mich 892 (1989).

B. PEOPLE V SAND

Defendant Jeffrey Francis Sand pled guilty of conspiracy to deliver more than 50 grams but less than 225 grams of cocaine for his role in a scheme to supply cocaine to an undercover police officer.⁸ At the plea hearing held on February 4, 1988, defendant stated that he was introduced to an undercover officer and agreed to supply him with cocaine in exchange for money. Defendant agreed to go to Florida and obtain the cocaine. While in Florida, but before he purchased the cocaine, defendant reneged on his part of the bargain. Defendant was subsequently arrested and brought back to Michigan to face prosecution.

At the time defendant committed the offense and pled guilty, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) provided a mandatory ten-year minimum term and a maximum term of twenty years or lifetime probation.⁹ About one month prior to defendant’s scheduled sentencing date, 1987 PA 275 took effect and amended § 7401(2)(a)(iii) by reducing the minimum term of imprisonment from ten years to five.¹⁰ At defendant’s sentencing on May 2, 1988, the trial court sentenced defendant to a term of ten to twenty years imprisonment.

Defendant subsequently filed a claim of appeal, and the Court of Appeals unanimously reversed in an unpublished per curiam decision decided May 22, 1989 (Docket No. 109768). The Court held that defendant should have been sentenced under § 7401 as amended by 1987 PA 275.

The people subsequently filed an application for leave to appeal, which we granted on September 27, 1989.

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The people argue in both cases that criminal defendants are to be sentenced under the relevant statute as it existed on the date the offense was committed. The prosecution claims that, absent an express contrary statement of legislative intent, ameliorative acts that amend sentencing statutes and mitigate the authorized terms of punishment apply prospectively to all offenses committed subsequent to the date the amendment takes effect.

Insofar as the prosecution maintains that the question presented is one of legislative intent, we agree. Under the constitution of this state, the people have vested in the Legislature the exclusive authority to determine the terms of punishment imposed for violations of the criminal law. Const 1963, art 4, § 45; In re Callahan, 348 Mich 77, 80; 81 NW2d 669 (1957); People v Coles, 417 Mich 523, 538; 339 NW2d 440 (1983). The Legislature also has the constitutional authority to provide that an ameliorative amendatory act applies prospectively to offenses committed after the amendatory act takes effect. In the context of the two cases presented before this Court, however, we disagree that the Legislature intended to exercise this power and so narrowly constrict the prospective operation of the amended Public Health Code. In light of the Legislature’s decision that the current terms of punishment authorized in the Public Health Code constitute an appropriate social response to narcotics crimes and abuse, we would hold that the Legislature intended cases pending in the trial court and those on direct appeal, where the issue is raised and preserved, on the date the ameliorative amendments took effect to be included within the ambit of the amended Public Health Code. To conclude otherwise would be inconsistent with the underlying purpose of the general saving statute and the sentencing policies of this state.

Despite the intent of the Legislature expressed in 1987 PA 275, 1988 PA 47, and 1989 PA 143, all of which mitigate the terms of punishment authorized in the Public Health Code for the manufacture, delivery, or possession of controlled substances,¹¹ the prosecution submits that defendants Schultz and Sand should be sentenced under MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) as those statutes existed when the defendants committed their crimes. The people reason that both the action to enforce criminal liability and the terms of punishment authorized in the statutes prior to amendment remain in effect by operation of the general saving statute, MCL 8.4a; MSA 2.214. Section 8.4a provides that the repeal of any statute under which a liability, forfeiture, or penalty is incurred does not discharge that liability, forfeiture, or penalty, absent a contrary statement of legislative intent:

The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.

Although it is clear that the two defendants before this Court have incurred criminal liability for which they may be punished, neither the purpose of § 8.4a nor the relevant case law from the Court of Appeals lends persuasive support to the prosecution’s argument that the Legislature intended the terms of punishment authorized prior to amendment in MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) to remain in effect against these defendants.

The history surrounding § 8.4a indicates that the Legislature enacted the general saving statute in response to a factual scenario vastly different from that presented before our Court today. Section 8.4a was specifically adopted to abrogate an anomaly resulting from the interplay between the common-law abatement doctrine and the constitutional Ex Post Facto Clause. This Court held in People v Lowell, 250 Mich 349; 230 NW 202 (1930), that at common law the repeal¹² of a criminal statute barred the prosecution of all pending and subsequent cases authorized under the repealed statute in the absence of a saving clause or general saving statute. In Lowell, the defendant was charged with violating the Michigan prohibition act. Subsequently, the act was amended to increase the authorized maximum term of punishment. We affirmed the lower court order granting defendant’s motion to quash the bindover and concluded that the prosecution could no longer continue. Under the common-law abatement doctrine,¹³ the act authorizing the prosecution had been repealed by the amendatory act. Id. at 352. Likewise, prosecution under the amended act, which provided a term of punishment that had been increased subsequent to the date of offense, was barred by the constitutional Ex Post Facto Clause. In order to alleviate this anomalous situation where a criminal defendant could no longer be prosecuted under any law even though his conduct was proscribed under the statute both before and after amendment, we invited the Legislature to enact a general saving statute.¹⁴ Subsequently, the Legislature responded by enacting MCL 8.4a; MSA 2.214.

By enacting § 8.4a, the Legislature has expressed its intent that conduct remains subject to punishment whenever a statute imposing criminal liability either is repealed outright or reenacted with modification, even though a specific saving clause has not been adopted.¹⁵ While § 8.4a does indicate that conduct remains subject to punishment, it does not indicate that the Legislature intended the statute prior to amendment to provide the terms of punishment where an amendatory act mitigates the authorized terms of punishment but continues to proscribe the same conduct. Although the dissent correctly notes that other jurisdictions have rejected this view, see post, pp 542-543, to conclude that the Michigan general saving statute also requires the defendants to be sentenced under the terms of punishment authorized in the statutes prior to amendment would be to gloss over the historical and philosophical underpinnings of § 8.4a.

The decisions of our Court of Appeals also support the view that the Legislature intended § 8.4a to prevent technical abatements from barring actions to enforce criminal liability and thereby excusing offenders from punishment. While the cases do illustrate the instances in which the Legislature did not intend to excuse criminal defendants from prosecution, they do not support the proposition that the Legislature enacted §8.4a to save the terms of punishment in effect on the date of offense when an ameliorative amendment was subsequently enacted and the case had not yet reached final disposition before our Court. Thus, in People v McDonald, 13 Mich App 226; 163 NW2d 796 (1968), where an ameliorative amendment eliminated the distinction between nighttime and daytime breaking and entering and reduced the maximum authorized term of punishment, the Court properly rejected the defendant’s argument that prosecution was precluded under the statute as it existed prior to amendment. In light of § 8.4a and the amendatory act, which also proscribed the same conduct as the statute prior to amendment, the Court correctly reasoned that the Legislature did not intend to excuse the defendant from criminal prosecution. Likewise, this analysis was also properly followed in People v Gravedoni, 172 Mich App 195; 431 NW2d 221 (1988), where the Court of Appeals correctly held that the defendant’s conduct was still subject to punishment notwithstanding an ameliorative amendment enacted subsequent to the date of offense. See also People v Ulysee Gibson, 71 Mich App 220; 247 NW2d 357 (1976). Cf. People v Dalby, 181 Mich App 673; 451 NW2d 201 (1989).

The same statutes at issue in McDonald, supra, were also the subject of the litigation in People v Poole, 7 Mich App 237; 151 NW2d 365 (1967). In that case, however, the defendant did not claim that the prosecution was barred because his conduct was no longer subject to punishment. Rather, the defendant argued that he should be sentenced under the terms of the amended statute, which reduced the maximum term of punishment. Since the defendant’s judgment of conviction was no longer subject to direct appellate review and had become final when he moved to be resentenced, the Court correctly held that the defendant was properly sentenced under the statute as it existed prior to amendment because the common-law abatement doctrine did not affect completed prosecutions. See also People v Dickerson, 17 Mich App 201; 169 NW2d 336 (1969).

The courts of other states that have adopted general saving statutes also hold that, in the absence of a contrary statement of legislative intent, criminal defendants are to be sentenced under an ameliorative amendatory act that is enacted subsequent to the date of offense and becomes effective during the pendency of the prosecution.¹⁶ This rule recognizes that the constitutional authority to determine sentencing policies rests exclusively with the Legislature and not the courts. It should likewise be the rule in Michigan since there is every reason to conclude that the Legislature intended the amended Public Health Code to apply to defendants before our Court. Both 1987 PA 275 and 1988 PA 47 reduce the mandatory minimum terms of imprisonment and provide a departure policy. Although in 1989 PA 143 the Legislature restored the mandatory minimum terms, the departure policy was retained.¹⁷ Thus, the legislative mandate is clear: The sentencing courts of this state are authorized to exercise discretion and, in appropriate cases presenting substantial and compelling circumstances, to depart from the Public Health Code’s mandatory minimum terms.

In their capacity as representatives of the people of this state, the members of the House and the Senate have determined that an appropriate social response to the menace of narcotics trafficking and abuse is to vest in the trial courts a limited degree of discretion to determine whether the legitimate goals of indeterminate sentencing will be promoted by imposing the mandatory minimum terms authorized in the Public Health Code. Indeterminate sentences are to be individually tailored, People v Coles, supra at 537, and the availability of judicial discretion is an integral aspect of indeterminate sentencing, id. at 539. Four factors may be taken into consideration to determine the appropriateness of a sentence: rehabilitation, deterrence, the protection of society, and punishment. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). Because the Public Health Code before and after amendment continues to proscribe the same conduct for which defendants Schultz and Sand were convicted, it is clear that deterrence, the certainty of punishment, and the other goals of indeterminate sentencing will continue to be promoted by sentencing the defendants under the terms provided in the ameliorative amendatory acts. Fairness will also be promoted since the trial courts would be better able to tailor a sentence to fit the needs of the individual defendant and society as well.

Defendant Schultz is precisely the type of individual the Legislature envisioned when the ameliorative amendments were enacted: A twenty-five-year-old middle school teacher with no prior criminal record. As this Court noted in People v Lorentzen, 387 Mich 167, 180; 194 NW2d 827 (1972), the ultimate goal of sentencing in this state is not to exact vengeance,¹⁸ but to protect society through just and certain punishment reasonably calculated to rehabilitate and thereby " 'convert bad citizens into good citizens ....’” Quoting People v Cook, 147 Mich 127, 132; 110 NW 514 (1907). Thus, although the Legislature has enacted a departure policy in order to more equitably promote the sentencing policies of this state, whether the trial court would in fact find substantial and compelling reasons to depart from the mandatory minimum term, as it indicated it would in Schultz,¹⁹ or not, as in Sand,²⁰ is irrelevant.

Our general saving statute was adopted to amend a technically correct but logically absurd result that arose from a legislative oversight. To ignore the plain intent of the Legislature in this case would lead to an equally anomalous result. Consequently, we would merely hold that where, as in this case, the clear intent of the Legislature is to vest discretion in the trial courts to determine whether a departure from the mandatory minimum terms authorized in the Public Health Code is warranted, the general saving statute and sentencing policies of this state do not indicate a contrary legislative intent that the defendants should be sentenced under the Public Health Code as it existed prior to amendment.

We would therefore affirm the judgment of the Court of Appeals in both cases and remand for resentencing under the Public Health Code as amended.

Levin and Cavanagh, JJ., concurred with Archer, J.

1 MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).

2 Jamieson was similarly charged, but absconded while on bail. To date, he has not been apprehended.

3 Defendant was arrested in a basement room adjacent to the one in which Jamieson sold the cocaine to the undercover police officer. 172 Mich App 674, 677; 432 NW2d 742 (1988). Inside the room, the police found in plain view a chemical compound used to cut cocaine, a scale, a mirror covered with white powder residue, and a switch blade knife. Id.

4 Following his arrest, defendant waived his Miranda rights. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

5 MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). At the time of defendant’s arrest, trial, and sentencing, § 7403 provided:

(1) A person shall not knowingly or intentionally possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.

Cocaine is a controlled substance classified in schedule 2. MCL 333.7214(aXiv); MSA 14.15(7214Xa)(iv).

6 [I]f I had the discretion I would not impose a twenty-year minimum sentence nor anything even close to it.

7 1988 PA 47 provides:

(1) A person shall not knowingly or intentionally possess a controlled substance unless the controlled substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:

(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 30 years.

(3) The court may depart from the minimum term of imprisonment authorized under subsection (2)(ii), (iii), or (iv) if the court ñnds on the record that there are substantial and compelling reasons to do so. [Emphasis added.]

8 MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(iii); MSA 14.15(7401X2Xa)(iii).

9 Section 7401 provided:

(1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:

(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be either imprisoned for not less than 10 years nor more than 20 years or placed on probation for life.

10 In addition to providing a departure policy and eliminating the lifetime probation provision, 1987 PA 275 provided:

(1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:

(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 5 years nor more than 20 years.

(4) The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so.

11 In 1989 PA 143, the Legislature restored the mandatory minimum terms as they were enacted in the 1978 Public Health Code prior to amendment by 1987 PA 275 and 1988 PA 47. 1989 PA 143, however, retained the departure policy adopted in the two ameliorative amendments.

12 The term "repeal” also includes the reenactment of the same statute with modification. Id. at 354.

13 See, generally, note, Today’s law and yesterday’s crime: Retroactive application of ameliorative criminal legislation, 121 U Pa LE 120,121 (1972).

14 We suggest to the legislature that, if this ruling does not accord with its actual intention, a similar situation may be avoided in the future by the enactment of a general saving statute, covering such cases and with such provisions as- the legislature may determine. [Id. at 361.]

15 Prosecutions completed prior to the repeal of a criminal liability statute remained unaffected by the common-law abatement doctrine. In re Jerry, 294 Mich 689, 691; 293 NW 909 (1940); People v McDonald, 13 Mich App 226, 229-230; 163 NW2d 796 (1968).

16 See, e.g., In re Estrada, 63 Cal 2d 740; 48 Cal Rptr 172; 408 P2d 948 (1965); State v Coolidge, 282 NW2d 511 (Minn, 1979); People v Oliver, 1 NY2d 152; 151 NYS2d 367; 134 NE2d 197 (1956); People v Festo, 96 AD2d 765; 463 NYS2d 444 (1983).

17 1989 PA 143, amending MCL 333.7401(4); MSA 14.15(7401)(4) and MCL 333.7403(3); MSA 14.15(7403)(3).

18 As we noted in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), "The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state.”

19 See n 6.

20 Mr. Sand, this Court doesn’t have any sympathy for you.