People v. Buehler

• Decision Date: 27 October 2005
• Docket Number: Docket No. 254298.
• Citation: 710 N.W.2d 55,268 Mich. App. 475
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nicholas James BUEHLER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

710 N.W.2d 55

268 Mich. App. 475

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nicholas James BUEHLER, Defendant-Appellee.

Docket No. 254298.

Court of Appeals of Michigan.

Submitted September 27, 2005, at Detroit.

Decided October 27, 2005, at 9:00 a.m.

Released for Publication January 6, 2006.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Ronald J. Frantz, Prosecuting Attorney, and Gregory J. Babbitt, Assistant Prosecuting Attorney, for the people.

Law Office of John R. Moritz, P.C. (by John R. Moritz), Holland, for the defendant.

Before: GAGE, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

The prosecution appeals, as on leave granted after remand from our Supreme Court, defendant's sentence of three years' probation for his conviction of indecent exposure as a sexually delinquent person, MCL 750.335a and 750.10a. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

I. Basic Facts and Procedural History

Defendant pleaded nolo contendere to a charge of indecent exposure, MCL 750.335a, and guilty to a charge of being a sexually delinquent person, MCL 750.10a. Because the offense of indecent exposure by a sexually delinquent person is subject to the statutory sentencing guidelines, see MCL 777.16q, a sentencing information report establishing a guidelines minimum range of 42 to 70 months' imprisonment was prepared by the trial court. At sentencing, however, the trial court stated that it intended to depart from the guidelines because defendant was maintaining sobriety and, in the court's opinion, possessed the ability to control his conduct when not drinking. On that basis, the trial court sentenced defendant to a term of three years' probation.

The prosecution moved for resentencing, arguing that a conviction for indecent exposure under MCL 750.335a mandates an indeterminate sentence of imprisonment for one day to life for any person found to have been sexually delinquent at the time of the offense. The trial court denied the motion, reasoning that the alternative sentencing scheme set forth by MCL 750.335a affords discretion in the sentence to be imposed and allows for the imposition of a term of probation. The prosecution thereafter filed a delayed application for leave to appeal the trial court's sentencing decision. In doing so, however, the prosecution abandoned its claim that defendant's conviction required that he be sentenced to the mandatory term of imprisonment for one day to life expressly provided for under MCL 750.335a, arguing instead that defendant's current sobriety did not constitute a substantial and compelling reason for departure from the legislatively mandated sentencing guidelines range of 42 to 70 months' imprisonment and that, therefore, defendant's sentence of probation was invalid. Finding that the trial court's reasons for departing below the guidelines minimum range fell "outside the principled range of outcomes," this Court vacated defendant's sentence of probation and remanded the case to the trial court for resentencing. Unpublished order of the Court of Appeals, entered September 12, 2003 (Docket No. 250160). On reconsideration, however, this Court vacated its previous order and denied the prosecution's application for leave to appeal "for lack of merit in the grounds presented." Unpublished order of the Court of Appeals, entered October 23, 2003 (Docket No. 250160). Our Supreme Court thereafter remanded this case for our consideration as on leave granted. 469 Mich. 1019, 677 N.W.2d 29 (2004).

II. Analysis

On remand, the prosecution renews its assertion that the trial court's reason for departing from the sentencing guidelines' minimum range was not substantial and compelling, thereby rendering invalid the probationary sentence imposed by the trial court in lieu of the term of imprisonment established by the guidelines. In support of this argument, the prosecution asserts that the more recently enacted sentencing guidelines control the sentencing of sexually delinquent persons convicted of indecent exposure under MCL 750.335a and that, therefore, a term of imprisonment is required in this case in the absence of a substantial and compelling reason to depart from the guidelines. However, because we find the probationary sentence imposed here to be a valid alternative to imprisonment under the discretionary sentencing scheme provided in MCL 750.335a, we need not reach the question whether a trial court is bound, when sentencing a defendant convicted of indecent exposure as a sexually delinquent person to a term of imprisonment, by the indeterminate term of imprisonment for one day to life expressly set forth in MCL 750.335a, or by the more recently enacted legislative sentencing guidelines.

Resolution of the question whether the probationary sentence at issue here is valid requires examination of the statutes prohibiting indecent exposure, MCL 750.335a, and defining and providing punishment for the commission of that offense by a person who is sexually delinquent, MCL 750.10a and 767.61a. Also relevant are those statutes providing for and limiting the imposition of probation for criminal offenses. See MCL 771.1 and 771.2. We undertake such review de novo, as a question of law, and in doing so must attempt to discern and give effect to the intent of the Legislature as manifest in the plain, unambiguous language of those statutes. People v. Houston, 473 Mich. 399, 403, 702 N.W.2d 530 (2005).

We begin our analysis with the text of MCL 750.335a, which provides in relevant part that any person who knowingly makes an open or indecent exposure of his or her person

is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or by a fine of not more than $1,000.00, or if such person was at the time of the said offense a sexually delinquent person, 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 .... [Emphasis added.]

For purposes of the penal code, MCL 750.10a defines a "sexually delinquent person," in part, as a person "whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others...." With respect to such persons, MCL 767.61a further provides that

[i]n 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. [Emphasis added.]

A plain reading of the language emphasized above indicates a clear intent by the Legislature to provide a discretionary and alternative sentencing scheme for persons convicted of indecent exposure. See Houston, supra at 403, 702 N.W.2d 530. For purposes of the question before us, the focal point of the statutory text is the disjunctive "or," as used by the Legislature in setting forth the manner in which a violation of MCL 750.335a may be punished. As this Court has previously recognized, "or" is generally used to express an alternative or to provide a choice between two or more things. People v. Kimble, 252 Mich.App. 269, 285, 651 N.W.2d 798 (2002), (citing Black's Law Dictionary [6th ed]), aff'd 470 Mich. 305, 684 N.W.2d 669 (2004); see also People v. Gatski, 260 Mich.App. 360, 365, 677 N.W.2d 357 (2004) ("Generally, `or' is a disjunctive term...."). Thus, by providing for various punishments in the disjunctive, the Legislature has indicated its intent to afford a trial court imposing sentence for a conviction of indecent exposure a choice between alternative penalties. Specifically, the Legislature has indicated that indecent exposure may be punished by either "imprisonment for not more than 1 year, or by a fine of not more than $1,000.00, or if such person was at the time of the said offense a sexually delinquent person, . . . by imprisonment for an indeterminate term...." MCL 750.335a. Thus, regardless of whether the term of any indeterminate prison sentence imposed by a trial court is controlled by the statutory sentencing guidelines or the more exacting language of MCL 750.335a, the plain, unambiguous language of MCL 750.335a...