People v. Davis

• Decision Date: 21 November 1989
• Docket Number: Docket No. 116262
• Citation: 181 Mich.App. 354,448 N.W.2d 842
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Fitzpatrick DAVIS, Defendant-Appellant. 181 Mich.App. 354, 448 N.W.2d 842
• Court: Court of Appeal of Michigan — District of US

Page 842

448 N.W.2d 842

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Fitzpatrick DAVIS, Defendant-Appellant.

Docket No. 116262.

181 Mich.App. 354, 448 N.W.2d 842

Court of Appeals of Michigan.

Submitted Oct. 4, 1989.

Decided Dec. 4, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 355] Lannen & Trusock by Patrick J. Lannen, Grand Rapids, for defendant-appellant.

Before J.H. GILLIS, P.J., and SULLIVAN and CAVANAGH, JJ.

CAVANAGH, Judge.

Defendant Larry Fitzpatrick Davis pled guilty to second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, arising from an incident of October 12, 1984. The trial court sentenced defendant on November 21, 1988, to life imprisonment, using the revised Michigan Sentencing Guidelines, Second Edition. The revised guidelines recommended an increased minimum sentence range for the offense. On appeal as of right, defendant challenges the constitutionality of the trial court's retroactive application of the revised guidelines.

Initially, we note that defendant failed to raise this issue in the trial court. As a general rule, this Court will not review an issue raised for the first time on appeal. People v. Calloway, 169 Mich.App. 810, 818, 427 N.W.2d 194 (1988). However, where a significant constitutional question is presented, as in this case, appellate review is appropriate. Id.

[181 MICHAPP 356] At issue is Administrative Order 1988-4, 430 Mich. ci (1988), in which the Michigan Supreme Court instituted use of the revised guidelines:

Administrative Order No. 1985-2, 420 Mich lxii, and Administrative Order No. 1984-1, 418 Mich lxxx, are rescinded as of October 1, 1988. The Sentencing Guidelines Advisory Committee is authorized to issue the second edition of the sentencing guidelines, to be effective October 1, 1988. Until further order of the Court, every judge of the circuit court and of the Recorder's Court for the City of Detroit must thereafter use the second edition of the sentencing guidelines when imposing a sentence for an offense that is included in the guidelines.

Defendant first contends that the trial court misconstrued Administrative Order 1988-4 by applying the revised guidelines to an offense committed before October 1, 1988. We disagree. The plain language of the order requires use of the Second Edition in every sentencing proceeding after October 1, 1988. Further, the preceding administrative orders requiring use of the guidelines were rescinded as of that date. We find the Court's order clear and unambiguous. Because the same principles of statutory construction apply in determining the Supreme Court's intent in promulgating rules of procedure, Issa v. Garlinghouse, 133 Mich.App. 579, 581, 349 N.W.2d 527 (1984), we find no room for further interpretation.

Defendant's primary contention, however, is that retroactive application of the revised Sentencing Guidelines violates the prohibition against ex post facto legislation. US Const., art. I, Sec. 10; Const. 1963, art. 1, Sec. 10. We note that, while the Ex Post Facto Clause of the United States Constitution does not apply directly to the judiciary, it is applicable[181 MICHAPP 357] through the Fourteenth Amendment Due Process Clause. Bouie v. Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964). Our Supreme Court has also acknowledged the applicability of the Ex Post Facto Clause to the judiciary. People v. Stevenson, 416 Mich. 383, 395, 331 N.W.2d 143 (1982), citing People v. Dempster, 396 Mich. 700, 714-718, 242 N.W.2d 381 (1976).

An ex post facto law is defined as:

"1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Calder [v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) ]. [Stevenson, supra, 416 Mich. at p. 396, 331 N.W.2d 143.]

The ex post facto prohibition serves a dual purpose: to prohibit state legislatures from enacting arbitrary or vindictive legislation and to provide fair notice such that individuals may rely on legislative enactments until explicitly changed. See Miller v. Florida, 482 U.S. 423, 429-430, 107 S.Ct. 2446, 2450-2451, 96 L.Ed.2d 351 (1987), citing Calder, supra; Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1981).

The test for determining whether a criminal law is an ex post facto law involves two elements: first, the law "must be retrospective, that is, it must apply to events occurring before its enactment," and second, "it must disadvantage the offender affected by it." Weaver v. Graham, supra, p. 29, 101 S.Ct. at p. 964; [181 MICHAPP 358] Miller v. Florida, supra, 482 U.S. at p. 430, 107 S.Ct. at p. 2451; Stevenson, supra, 416 Mich. at p. 397, 331 N.W.2d 143. However, every retrospective law is not an ex post facto law. Calder, supra. The Ex Post Facto Clause does not restrict "legislative control of remedies and modes of procedures which do not affect matters of substance," Miller v. Florida, supra, 482 U.S. at p. 433, 107 S.Ct. at p. 2452, citing Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), or "rights vested." Calder, supra.

In consideration of these principles, we do not find retroactive application of the revised Sentencing Guidelines offensive to the ex post facto law prohibition. First, the revised guidelines do not "increase the punishment" for defendant's crime. See Calder, supra. The guidelines remain nonbinding on the trial courts. Administrative Order 1988-4. They serve merely as a tool to assist the trial judge in the exercise of his sentencing discretion. People v. Green, 152 Mich.App. 16, 18, 391 N.W.2d 507 (1986). The guidelines provide a "recommendation;" they do not, and cannot, limit the discretion afforded trial courts by the indeterminate sentencing act, M.C.L. Sec. 769.8; M.S.A. Sec. 28.1080. The guidelines themselves actually encourage departure so long as the court articulates reasons for departure. People v. Ridley, 142 Mich.App. 129, 133-134, 369 N.W.2d 274 (1985). Even factors already considered in the guidelines may support a departure. Id. Finally, appellate review is of right even where a sentence falls within the recommended guideline range. People v. Broden, 428 Mich. 343, 354, n. 18, 408 N.W.2d 789 (1987).

In Miller v. Florida, supra, a unanimous United States Supreme Court held that retroactive application of Florida's statutory guidelines violated the Ex Post Facto Clause. There, however, the Florida statute created a "presumptive sentence" which the statute "assumed to be appropriate for the [181 MICHAPP 359] composite score of the offender." Miller, supra, 482 U.S. at p. 426, 107 S.Ct. at p. 2449. The Florida statute provided that "[d]epartures from the presumptive sentence should be avoided," absent "clear and convincing reasons." A sentence outside the guidelines required a written statement delineating...