People v. Arnold

• Decision Date: 11 June 2019
• Docket Number: No. 325407,325407
• Citation: 328 Mich.App. 592,939 N.W.2d 690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lonnie James ARNOLD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

328 Mich.App. 592

939 N.W.2d 690

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Lonnie James ARNOLD, Defendant-Appellant.

No. 325407

Court of Appeals of Michigan.

Submitted August 21, 2018, at Lansing.

Decided June 11, 2019, at 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Michael G. Roehrig, Prosecuting Attorney, and Jonathan A. Jones, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Marilena David-Martin) for defendant.

Before: Gleicher, P.J., Murray, C.J., and Cavanagh, J.

ON REMAND

Per Curiam.

Violation of the statute proscribing indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c), "is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life." Before the enactment of the legislative sentencing guidelines, the "1 day to life" sentence was construed as an alternate or optional sentence for sexually delinquent persons. See People v. Kelly , 186 Mich. App. 524, 465 N.W.2d 569 (1990). With the 1998 enactment of the legislative sentencing guidelines, indecent exposure by a sexually delinquent person was classified as a Class A felony, subject to a range of sentences dependent on an offender’s variable scores. MCL 777.16q. The Supreme Court has directed us to consider what effect, if any, the adoption of the guidelines "had on a trial court’s options in sentencing a defendant convicted of indecent exposure by a sexually delinquent person." People v. Arnold , 502 Mich. 438, 483, 918 N.W.2d 164 (2018) ( Arnold III ).

We conclude that the sentencing guidelines provide another option or alternative, in addition to the sexual-delinquency scheme, when sentencing an individual convicted of indecent exposure. As the trial court was not aware of its range of sentencing options, or that the legislative sentencing guidelines would be rendered advisory by People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015), we vacate defendant’s sentence and remand to the trial court for further sentencing proceedings.

I

A jury convicted defendant of indecent exposure by a sexually delinquent person in violation of MCL 750.335a(2)(c)¹ for fondling himself at a public library in front of an employee. Defendant was characterized as a sexually delinquent person because he had committed such acts before and therefore was a "person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others...."

MCL 750.10a.² Indecent exposure by a sexually delinquent person is a Class A felony under MCL 777.16q, with a statutory maximum of life. Defendant’s offense and prior record variable scores placed him in cell F-III of the Class A grid, MCL 777.62, and with consideration of defendant’s fourth-offense habitual-offender status, MCL 777.21(3)(c), defendant’s minimum guidelines range was calculated at 135 to 450 months. Arnold III , 502 Mich. at 449-450, 918 N.W.2d 164. The trial court sentenced defendant within the guidelines to 25 to 70 years' imprisonment. People v. Arnold , unpublished per curiam opinion of the Court of Appeals, issued April 12, 2016 (Docket No. 325407), p. 1, 2016 WL 1445335 ( Arnold I ).³

In Arnold I , defendant challenged his sentence, asserting that the trial court was required by MCL 750.335a(2)(c) to sentence him to "1 day to life". Arnold I , unpub. op. at 4. We concluded that a court sentencing a defendant convicted under MCL 750.335a(2)(c) must still "abide by the sentencing guidelines" as directed by People v. Buehler (On Remand) , 271 Mich. App. 653, 658-659; 723 N.W.2d 578 (2006), rev'd in part on other grounds 477 Mich. 18, 727 N.W.2d 127 (2007). Arnold I , unpub. op. at 5. However, we remanded for further sentencing proceedings as Lockridge , 498 Mich. 358, 870 N.W.2d 502, had since rendered the sentencing guidelines advisory. Arnold I , unpub. op. at 5-6.

Defendant sought reconsideration, again urging that a sentence of "1 day to life" was required. We granted the motion because in the interim this Court issued a published opinion controlling our resolution of this issue— People v. Campbell , 316 Mich. App. 279, 894 N.W.2d 72 (2016). Campbell , 316 Mich. App. at 299-300, 894 N.W.2d 72, held that although the legislative sentencing guidelines were now only advisory, "the sentence provided under MCL 750.335a(2)(c) is stated in mandatory terms. Consequently, after the decision in Lockridge , trial courts must sentence a defendant convicted of indecent exposure as a sexually delinquent person consistently with the requirements of MCL 750.335a(2)(c)." In People v. Arnold (On Reconsideration) , unpublished per curiam opinion of the Court of Appeals, issued September 22, 2016 (Docket No. 325407), p. 2, 2016 WL 5328628 ( Arnold II ), we concluded that we were "bound by Campbell " to "remand for imposition of the mandatory sentence set forth in MCL 750.335a(2)(c)."

The Supreme Court granted the prosecution’s application for leave to appeal this Court’s decision in Arnold II , "set aside Campbell ,"⁴ and vacated our opinion based upon it. Arnold III , 502 Mich. at 483, 918 N.W.2d 164. The Supreme Court determined that a " ‘1 day to life’ sentence has never been required by [ MCL 750.335a(2)(c) ]," contrary to Campbell , 894 N.W.2d 72. Arnold III , 502 Mich. at 444, 918 N.W.2d 164. Rather, "1 day to life" is a nonmodifiable sentencing option for sexual delinquents. Id. at 450-451, 918 N.W.2d 164, citing Kelly , 186 Mich. App. at 531, 465 N.W.2d 569.

The Court outlined the development of the sexual-delinquency sentencing scheme. Arnold III , 502 Mich. at 447-465, 918 N.W.2d 164. The Court described how the first sexual-delinquency acts provided for the indefinite commitment of "sexual psychopaths" until a court determined that they were no longer "a menace to the public safety." Id. at 456-457, 918 N.W.2d 164 (cleaned up).⁵ Over time, "the Legislature began chipping away at" the broad application of the sexual-delinquency sentencing scheme. Id. at 464, 918 N.W.2d 164. It is now limited in application to five specific offenses: "(1) sodomy, MCL 750.158, (2) indecent exposure, and (3) gross indecency between (a) two males, MCL 750.338, (b) two females, MCL 750.338a, or (c) between a male and a female, MCL 750.338b." Arnold III , 502 Mich. at 464-465, 918 N.W.2d 164. The Court further noted that prior to the enactment of 2005 PA 300, MCL 750.335a provided that violation of the statute " ‘may be punishable by imprisonment ... for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life....’ " The 2005 amendments substituted "is" for the emphasized terms. Arnold III , 502 Mich. at 451-452, 918 N.W.2d 164.

The Court concluded that the "1 day to life" sentence comprises an "alternate sentence" in accordance with MCL 767.61a and that this alternative sentence is optional, not mandatory. Id. at 465-469, 918 N.W.2d 164. MCL 767.61a outlines the manner in which an individual charged with an identified predicate offense may commensurately be identified as a sexually delinquent person:

In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person....

Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense. [ MCL 767.61a (emphasis added).]

Under this statute, before the enactment of the statutory sentencing guidelines, "a judge faced with an adjudicated sexual delinquent guilty of indecent exposure could choose any legally available sentencing option that the judge deemed appropriate," including a fine and jail sentence of up to 1 year or alternatively "1 day to life" as provided in MCL 750.335a(2)(a) to (c). Arnold III , 502 Mich. at 468-469, 918 N.W.2d 164. The Supreme Court "conclude[d] that [ Kelly , 186 Mich. App. 524, 465 N.W.2d 569,] correctly construed the ‘1 day to life’ alternate sentence as an option a sentencing judge could draw upon, alongside and not to the exclusion of other available options," based on "the text of [ MCL 750.335a(2) ], the Legislature’s usual pattern in clearly identifying mandatory sentences, the relation this scheme would have had to the overarching law of sentencing at the time the scheme was adopted, and the history of the scheme[.]" Arnold III , 502 Mich. at 469, 918 N.W.2d 164.

"Having concluded that Kelly correctly construed ‘1 day to life’ as an option," the Supreme Court then considered whether the option of "1 day to life" was modifiable—permitting a sentence within the range identified—or nonmodifiable—requiring the precise sentence of "1 day to life." Id. The Court found the "1 day to life" sentence nonmodifiable based on the Legislature’s use of the mandatory term "shall." The Court also found the characterization of "1 day to life" as an "alternate sentence" in MCL 767.61a to "indicate[ ] that [the sentence] ought to function in some distinct way." Arnold III , 502 Mich. at 470, 918 N.W.2d 164. The Court further relied on the historical purpose of the "sexual-delinquency scheme, which was clearly intended to be therapeutic and open-ended." Id. at 471, 918 N.W.2d 164. The Court emphasized, "The purpose of the scheme was to create a different sentencing option, one in which the judge gave up control over the amount of time the defendant served to experts who would assess when the defendant was well enough to rejoin society." Id.

And viewing the "1 day to life" sentencing scheme in conjunction with MCL 769.9(2), the Supreme Court "agree[d] with Kelly that the ‘1 day to life’...