People v. Earl

• Decision Date: 26 March 2014
• Docket Number: Calendar No. 3.,Docket No. 145677.
• Citation: 495 Mich. 33,845 N.W.2d 721
• Parties: PEOPLE v. EARL.
• Court: Michigan Supreme Court

495 Mich. 33
845 N.W.2d 721

PEOPLE
v.
EARL.

Docket No. 145677.
Calendar No. 3.

Supreme Court of Michigan.

Argued Oct. 8, 2013.
Decided March 26, 2014.

[845 N.W.2d 723]

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Louis F. Meizlish, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Christopher M. Smith) for defendant.

Kym L. Worthy, Detroit, William A. Forsyth, and Timothy K. McMorrow, Grand Rapids, for amicus curiae the Prosecuting Attorneys Association.

MICHAEL F. CAVANAGH, J.

This case requires us to determine whether the imposition of an increased Crime Victim's Rights Fund assessment violates the Ex Post Facto Clauses of the Michigan and United States Constitutions. U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10. We hold that it does not. Specifically, we hold that the trial court's order requiring defendant to pay a $130 crime victim's rights assessment does not violate the bar on ex post facto laws. Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

On March 18, 2010, defendant robbed a bank in Southfield, Michigan. He was arrested six days later, and heroin and crack cocaine were found on his person at the time of the arrest. Defendant was charged with and convicted of bank robbery

[845 N.W.2d 724]

and two counts of possessing less than 25 grams of a controlled substance. At the time defendant committed the offenses, MCL 780.905 required that all defendants found guilty of a felony pay a $60 crime victim's rights assessment. 1996 PA 344. The statute was amended effective December 16, 2010, however, to raise the crime victim's rights assessment for convicted felons to $130. 2010 PA 281. Defendant was sentenced on February 15, 2011, and was ordered to pay $130 for the crime victim's rights assessment. Defendant appealed and claimed, among other things, that the increased assessment was an increased punishment in violation of the Ex Post Facto Clauses of the Michigan and United States Constitutions. The Court of Appeals affirmed the $130 assessment, holding that it is not punitive, and, therefore, does not violate the bar on ex post facto laws. People v. Earl, 297 Mich.App. 104, 114, 822 N.W.2d 271 (2012). Defendant sought leave to appeal in this Court, which we granted. People v. Earl, 493 Mich. 945, 828 N.W.2d 359 (2013).

II. STANDARD OF REVIEW

“Whether a statutory scheme is civil or criminal is ... a question of statutory construction.” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (citation and quotation marks omitted). The interpretation of a statute is a question of law that this Court reviews de novo. Herman v. Berrien Co., 481 Mich. 352, 358, 750 N.W.2d 570 (2008).

III. ANALYSIS A. THE CRIME VICTIM'S RIGHTS FUND

The Crime Victim's Rights Fund is contained within the Crime Victim's Rights Act, MCL 780.751 et seq. The Crime Victim's Rights Act was enacted in response to the growing recognition of the concerns regarding disproportionate treatment of crime victims and a perceived insensitivity to their plight. People v. Grant, 455 Mich. 221, 239–240, 565 N.W.2d 389 (1997). In 1989, the Crime Victim Services Commission was established as part of the Crime Victim's Rights Act and was given the following duties:

(a) Investigate and determine the amount of revenue needed to pay for crime victim's rights services.

(b) Investigate and determine an appropriate assessment amount to be imposed against convicted criminal defendants and juveniles for whom the probate court or the family division of circuit court enters orders of disposition for juvenile offenses to pay for crime victim's rights services.

(c) By December 31 of each year, report to the governor, the secretary of the senate, the clerk of the house of representatives, and the department the commission's findings and recommendations under this section. [MCL 780.903.]

The Legislature established the Crime Victim's Rights Fund to pay for crime victim's rights services. MCL 780.904(1). The Crime Victim's Rights Fund is funded by the crime victim's rights assessment. MCL 780.904. Currently, a convicted felon is assessed $130, those convicted of misdemeanors are assessed $75, and juveniles are assessed $25 when the court enters an order of disposition for a juvenile offense. MCL 780.905(1) and (3). Money remaining in the Crime Victim's Rights Fund after victim's services have been paid for may be used for crime victim compensation. MCL 780.904(2). See, also, MCL 18.351 to MCL 18.368. Excess revenue that has not been used for crime victim compensation may be used to establish and maintain a statewide trauma system. MCL 780.904(2).

[845 N.W.2d 725]

B. EX POST FACTO CLAUSE ¹

The Ex Post Facto Clauses of the United States and Michigan Constitutions bar the retroactive application of a law if the law: (1) punishes an act that was innocent when the act was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for a crime; or (4) allows the prosecution to convict on less evidence. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed 648 (1798). At issue in this case is whether an increase in the crime victim's rights assessment increases the punishment for a crime.

Determining whether a law violates the Ex Post Facto Clause is a two-step inquiry. Smith, 538 U.S. at 92, 123 S.Ct. 1140. The court must begin by determining whether the Legislature intended the statute as a criminal punishment or a civil remedy. Id. If the Legislature's intention was to impose a criminal punishment, retroactive application of the law violates the Ex Post Facto Clause and the analysis is over. Id. However, if the Legislature intended to enact a civil remedy, the court must also ascertain whether “the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.” Id. (citations and quotation marks omitted). Stated another way, even if the text of the statute indicates the Legislature's intent to impose a civil remedy, we must determine whether the statute nevertheless functions as a criminal punishment in application. Because we conclude that the Legislature did not intend the crime victim's rights assessment to be a criminal punishment, we will address both issues.

C. WHETHER THE LEGISLATURE INTENDED THE CRIME VICTIM'S RIGHTS ASSESSMENT TO BE PUNITIVE

When determining whether the Legislature intended for a statutory scheme to impose a civil remedy or a criminal punishment, a court must first consider the statute's text and its structure. Smith, 538 U.S. at 92, 123 S.Ct. 1140. Specifically, a court must ask whether the Legislature, “indicated either expressly or impliedly a preference for one label or the other.” Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (citation and quotation marks omitted). In considering whether a law is a criminal punishment, a court “generally bases its determination on the purpose of the statute.” Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). “If the statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal.” Id. However, a statute is intended as a civil remedy if it imposes a disability to further a legitimate governmental purpose. Id. “The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the

[845 N.W.2d 726]

legislature.” Id. When giving effect to the Legislature's intent, we first focus on the statute's plain language. People v. Cole, 491 Mich. 325, 330, 817 N.W.2d 497 (2012) (citations and quotation marks omitted).

Cole, 491 Mich. at 336–337, 817 N.W.2d 497, concluded that imposing lifetime electronic monitoring for a conviction of first or second-degree criminal sexual conduct constituted a criminal punishment.² In support of that conclusion, Cole noted that the Legislature included monitoring as part of the sentence. Id. at 336, 817 N.W.2d 497 (“The use of the directive ‘shall sentence ’ indicated that the Legislature intended to make lifetime electronic monitoring part of the sentence itself.”) (emphasis added). While the crime victim's rights assessment is imposed at the time of sentencing,MCL 769.1k(1)( iv ), in contrast to Cole, the Legislature did not expressly manifest an explicit intent to make the assessment part of the sentence itself. Rather, the Crime Victim's Rights Act statutory scheme leads to the opposite conclusion—that the crime victim's rights assessment does not have a label, function, or purpose that is consistent with a criminal sentence or penalty.

Specifically, nothing on the face of the Crime Victim's Rights Act expressly indicates that the Legislature intended the crime victim's rights assessment to be a criminal punishment. However, the use of the label “assessment,” as opposed to “fine” or “penalty,” is instructive. The Legislature is aware that a fine is generally a criminal punishment. Indeed, the Michigan Penal Code defines “crime” as an act or omission forbidden by law that is punishable upon conviction by a “[f]ine not designated a civil fine.” MCL 750.5. Accordingly the Legislature's decision to use the term “assess” as opposed to “fine” or another similar term within the Crime Victim's Rights Act implies a nonpunitive intent.

While labels alone do not determine whether a statutory provision is a criminal punishment or civil remedy. Smith, 538 U.S. at 94, 123 S.Ct. 1140 (“[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one”), the function of the crime victim's rights assessment is true to its label as an assessment. “Assessment” is defined as “the...