People v. Fernandez

Decision Date29 December 1986
Docket NumberDocket No. 76675
Citation398 N.W.2d 311,427 Mich. 321
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stephen Rafel FERNANDEZ, Defendant-Appellee. 427 Mich. 321, 398 N.W.2d 311
CourtMichigan Supreme Court

John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, Thomas M. Chambers, Asst. Pros. Atty., Detroit, for plaintiff-appellant, cross-appellee.

State Appellate Defender Office, by Susan M. Meinberg (P34433), Asst. Defender, Detroit, for defendant-appellee, cross-appellant.

BOYLE, Justice.

We granted leave in this case to consider whether M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) requires a mandatory nonparolable life sentence for persons convicted of conspiracy to commit first-degree murder, and whether conspiracy to commit second-degree murder is a lesser included offense of conspiracy to commit first-degree murder for which instruction should have been given in this case. We hold that a mandatory life sentence is required on conviction of conspiracy to commit first-degree murder, and that on the facts of this case no evidence existed to support a finding of conspiracy to commit second-degree murder. We remand this case to the Court of Appeals for consideration of whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder under M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) is eligible for parole consideration under M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4).

I Facts

The facts leading up to this appeal are ably set out in the opinion below, People v. Fernandez, 143 Mich.App. 388, 390-392, 372 N.W.2d 567 (1985):

"Defendant and complainant, Janet Fernandez, were married in 1970. They had one daughter, Brandy, who was born in 1978. Though the marriage went without undue difficulty during the first few years, the relationship ran into trouble in 1981. In December of that year, Janet Fernandez told defendant ... that she wanted a divorce. [The relationship became very tense and, in a telephone conversation on January 17, 1982, the defendant] threatened to kill her or throw acid in her face. On another occasion, defendant twisted his wife's arms and told her that there wasn't going to be a divorce. She moved into her mother's house and filed for divorce on January 29, 1982. Between January 22 and April, 1982, she had little contact with defendant.

"In May, 1982, complainant wife met with defendant to discuss their daughter, Brandy. Defendant told his wife that he did not know what he might do if he ever caught complainant with anyone else. On June 24, 198, still maintaining that there just could not be a divorce, defendant asked her if she still worked in the morning and then told her that he could either kill her and go to jail, or he could have it done, and all the problems would be solved.

"The next morning, June 25, 1982, complainant was driving her stepfather's car to work when she heard a noise like a brick or a rock hitting the passenger side of the car. She looked back and saw a man wearing a military camouflage jacket standing on the street, near an alley, holding a handgun. Complainant went to work and called 911, the police emergency number. On July 27, 1982, complainant left her mother's house in the morning to go to work. As she came down the steps, she noticed that one of the tires on her car was flat. When she looked up, two men wearing military jackets came running toward her. She screamed, and one of the men stabbed her with a knife. As a result of that incident, complainant had surgery and spent six days in the hospital. Subsequently, she identified Henry Reyna, Jr., as the man who had stabbed her.

"Reyna was arrested on September 13, 1982, and another suspect, Migual 'Pete' Figueroa, was apprehended on September 14. Migual Figueroa pled guilty to assault with intent to murder and testified for the prosecution in the within case. He testified that, after the failure of the June, 1982, attempt on complainant's life, he agreed with defendant to find a hit man to kill complainant wife, Janet Fernandez. Pursuant to that plan, he contacted Henry Reyna, who eventually agreed to do the job.

"Reyna also pled guilty to assault with intent to murder and testified for the prosecution. He stated that he knew defendant and Figueroa, and that Figueroa had approached him and told him that he knew a guy that wanted somebody dead and that that person was willing to pay two grand for it. Reyna testified that Figueroa was supposed to receive $500 to serve as the go-between. Reyna contacted a man he knew, Omar, and offered him $500 to help with the job. Reyna testified that on July 27, 1982, Omar snatched complainant's purse and he (Reyna) stabbed her with a knife.

"Defendant testified in his own behalf and maintained that he had never agreed with anyone, or solicited, incited or induced anyone, to kill his wife. The jury did not buy defendant's version and, as indicated, found him guilty."

Mr. Fernandez was convicted of conspiracy to commit first-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and aiding and abetting an assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. The trial judge sentenced him to mandatory life imprisonment for the conspiracy conviction and 120 to 240 months for the assault conviction. The Court of Appeals affirmed, but remanded for resentencing, finding that a life sentence, while within the sentencing discretion of the trial court, was not mandatory.

II Mandatory Nonparolable Life

The Court of Appeals defined the critical issue as follows: "[W]here no murder has been committed, is it mandatory that a defendant convicted of conspiracy to commit murder in the first degree, receive a nonparolable life sentence?" Fernandez, supra, p. 397, 372 N.W.2d 567. The Court answered the question in the negative and remanded for resentencing. The panel's reasoning was based upon an intricate analysis of the conspiracy statute, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), the first-degree murder statute, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, the indeterminate sentence statute, M.C.L. Sec. 769.8; M.S.A. Sec. 28.1080, and the parole statute, M.C.L. Sec. 791.233; M.S.A. Sec. 28.2302.

We believe that the issue posed by the Court of Appeals is actually two issues, each of which requires separate treatment. The first issue is whether the conspiracy statute, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), requires a life sentence for conspiracy to commit first-degree murder. We hold that it does. The second issue is whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder under M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) is eligible for parole under the "lifer law," M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). We remand that issue to the Court of Appeals for consideration.

A. Does Conviction of Conspiracy to Commit First-degree Murder Require a Life Sentence?

The conspiracy statute, M.C.L. Sec. 750.157a; M.S.A. 28.354(1) defines both the crime and the punishment:

"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:

"(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed." (Emphasis added.)

The Legislature had a variety of different punishment schemes from which it could choose. The comments to the Model Penal Code describe the types of conspiracy penalty provisions in existence in the early 1960's:

"There were four predominant types of provisions, only the last two enjoying significant support in the revised codes and proposals. A number of states provided that conspiracy was a misdemeanor regardless of its object. Others fixed the maximum sentence for a conspiracy at a constant level regardless of the conspiratorial objective. Still others set different ranges or maxima for conspiracies to commit different classes of substantive crimes. A few made the maximum for conspiracy the same as the maximum provided for the offense that is the objective." Model Penal Code, Sec. 5.05, commentary at 488-489 (1985 official draft).

The language of the statute makes it clear that a person convicted of conspiracy "shall be punished by a penalty equal to that which could be imposed" upon conviction of the target offense--the crime that was the subject of the conspiracy. The legislative history of Sec. 157a, enacted as 1966 P.A. 296, further illustrates the stringent penalty intended by the Legislature for a conspiracy conviction.

House Bill 3571, the bill which ultimately became 1966 PA 296, was originally adopted by the House with a maximum penalty of twenty years in prison and a discretionary $10,000 fine for conspiracies to commit target offenses punishable by life sentences or any term of years up to and including life. Conspiracy convictions for target offenses punishable by five to twenty years were to be punished the same as the target offense plus a discretionary $10,000 fine. 1 The Senate amended the relevant language to that ultimately adopted:

"[I]f commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be...

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    ...the issue whether the offense exists as a lesser included offense of conspiracy to commit first-degree murder. People v. Fernandez, 427 Mich. 321, 342, 398 N.W.2d 311 (1986).People v. Gilbert, 183 Mich.App. 741, 455 N.W.2d 731, 735 (1990).F [¶ 68] The majority, at ¶ 19, cites United States ......
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