People v. Dziuba, Docket No. 73704
| Decision Date | 23 April 1985 |
| Docket Number | Docket No. 73704 |
| Citation | 139 Mich.App. 789,363 N.W.2d 33 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Robert DZIUBA, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.
George C. Bush, Saginaw, for defendant-appellant.
Before BEASLEY, P.J., and CYNAR and SHEPHERD, JJ.
Defendant pled guilty to second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, as part of a plea bargain. Defendant was sentenced to life imprisonment. He now appeals his sentence to this Court as of right.
Defendant claims that he must be resentenced because the trial court erred in interpreting the relevant statutes and concluded that defendant would be eligible for parole consideration under the lifer law, M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304. Defendant relies in large part on an opinion by the Attorney General which held that 1978 Initiative Proposal B to amend 1953 P.A. 232, Sec. 33, M.C.L. Sec. 791.233; M.S.A. Sec. 28.2303, in effect repealed the "lifer law", M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). See, OAG, 1979-1980, No. 5,583, p. 438 (October 16, 1979). Defendant contends that he must be resentenced because the trial judge indicated he expected defendant would be considered for parole under the "lifer law", M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). Defendant suggests that because OAG, 1979-1980, No. 5,583 bars consideration for parole when a life term is imposed, he must be remanded to the trial court to be sentenced to a term of years so that he can be considered for parole in the future.
Defendant's reliance on the Attorney General's opinion to support his appeal for resentencing is misplaced. In People v. Waterman, 137 Mich.App. 429, 358 N.W.2d 602 (1984), this Court found the Attorney General's opinion to be in error. This Court held that Proposal B did not repeal the "lifer law", 1953 P.A. 232, Sec. 34; M.C.L. Sec. 791.234; M.S.A. Sec. 28.2304. Therefore the defendant's case did not need to be remanded for resentencing the defendant to a term of years. The Waterman panel states that principles of statutory construction required the conclusion that Proposal B did not repeal the lifer law. The express purpose of Proposal B was to amend 1953 P.A. 232, Sec. 33, being M.C.L. Sec. 791.233; M.S.A. Sec. 28.2303. The language of Proposal B makes clear that there was no intention to amend the lifer law. Proposal B only amended Sec. 33 so that the allowances for good time, special good time and special parole in subsection (b) of Sec. 33 were repealed. We agree with the Waterman panel that repeal of the lifer law by implication cannot be found here. The trial court reached the same conclusion:
"I make the statement for the record so any reviewing court will know, in my opinion, a person now sentenced to a life sentence other than for first-degree murder or a major controlled substance offense is eligible for parole after ten calendar years. It wouldn't make sense now that there are sentence credits available under what used to be Proposal B offenses, it wouldn't make sense * * * to use the reasoning that the attorney general used * * * in analyzing the affect [sic] of Proposal B * * *. So, I think the reasoning would no longer apply.
* * *
* * * "But I think it more appropriate to impose a life sentence with the understanding that--not that Mr. Dzuiba ought to be paroled in ten years at all but at least that the Department would have the opportunity to look at it and to make--Parole Board would have an opportunity to make some judgments on his conviction at that time.
"I'll also indicate that if the--if a reviewing Court believes that I am wrong in my analysis of the effect of the--of a life sentence in terms of eligibility for parole, if I thought I was wrong, I would right now impose a--a sentence with a minimum of 20 years and a maximum of 165 years."
We agree with the trial court that defendant's life term does not bar later consideration for parole under the lifer law M.C.L. Sec. 791.234; M.S.A. Sec. 28.2304.
Our conclusion is buttressed by considerations other than those stated in Waterman, supra. First, we note that Sec. 33 and Sec. 34 were both enacted as part of 1953 P.A. 232. Thus the sections must be harmonized if possible and each word given effect. Stowers v. Wolodzko, 386 Mich. 119, 191 N.W.2d 355 (1971); 2A Sutherland, Statutory Construction (3d ed.), Sec. 46.06, p. 63. The original enactment of Sec. 33 stated that no prisoner shall be granted parole "until he has served the minimum term". Nonetheless Sec. 34 of the same enactment contemplates consideration for parole after 10 calendar years when a life sentence was imposed (excluding life sentences for first-degree). This by inference negates the Attorney General's opinion that the minimum term of a life...
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