People v. Gilliam

• Decision Date: 18 August 1981
• Docket Number: Docket No. 50759
• Citation: 108 Mich.App. 695,310 N.W.2d 843
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Franklin GILLIAM, Defendant-Appellant. 108 Mich.App. 695, 310 N.W.2d 843
• Court: Court of Appeal of Michigan — District of US

Page 843

310 N.W.2d 843

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Franklin GILLIAM, Defendant-Appellant.

Docket No. 50759.

108 Mich.App. 695, 310 N.W.2d 843

Court of Appeals of Michigan.

Aug. 18, 1981.

Released for Publication Oct. 20, 1981.

[108 MICHAPP 697] Justus C. Scott, Lapeer, for plaintiff-appellee.

Frank A. Antonelli, Lapeer, for defendant-appellant.

Before KAUFMAN, P. J., and ALLEN and RILEY, JJ.

RILEY, Judge.

On May 14, 1979, defendant pled guilty to a charge of violating the so-called felony-nonsupport statute, M.C.L. § 750.165; M.S.A. § 28.362. The judge delayed sentencing for one year on the condition that defendant pay $20 per week per child for support of his three minor children and that he pay certain other costs. Upon defendant's failure to comply with the conditions attendant to the delayed sentence, defendant was brought in for sentencing before the one-year period expired. On January 28, 1980, defendant was sentenced to 60 days incarceration in the county jail and now appeals as of right.

Defendant does not challenge the factual basis upon which his conviction rests. More fundamentally,[108 MICHAPP 698] defendant assails the constitutionality of the felony-nonsupport statute, claiming that it violates his constitutional rights to due process and equal protection.

The threshold issue is whether appellate review of these issues is precluded because of defendant's failure to raise them in the court below or as a result of his tendering of a plea of guilty to the offense charged. As to the latter, we are of the opinion that a plea of guilty does not waive appellate consideration of the constitutionality of the statute under which defendant was convicted. People v. Johnson, 396 Mich. 424, 444, 240 N.W.2d 729 (1976); People v. Riley, 88 Mich.App. 727, 730, 279 N.W.2d 303 (1979). We are also of the opinion that the defendant's failure to raise the issue below should not preclude our review, given the serious due process implications of conviction under an invalid statute, especially where, as here, defendant was not represented by counsel at the time he tendered his plea. See People v. Miller, 49 Mich.App. 53, 61, 211 N.W.2d 242 (1973); People v. De Silva, 32 Mich.App. 707, 713, 189 N.W.2d 362 (1971).

Turning to the merits of defendant's contentions, he first argues that the statute abridges his constitutional guarantee of equal protection under the law because of its discriminatory application only to "husbands" and "fathers". The statute in issue provides:

"Where in any decree of divorce, or decree of separate maintenance granted in this state, or by order entered during the pendency of any such proceedings, if personal service is had upon the husband or upon the father of any minor child or children, under the age of 17 years, or such husband or father shall have entered an appearance in such proceedings either as plaintiff or [108 MICHAPP 699] defendant, the court shall order such husband to pay any amount to the clerk or friend of the court for the support of any wife or former wife who by reason of any physical or mental affliction is unable to support herself, or father to pay any amount to the clerk or friend of the court for the support of such minor child or children, and said husband or father shall refuse or neglect to pay such amount at the time stated in such order and shall leave the state of Michigan, said husband or father shall be guilty of a felony: Provided, however, if at any time before sentence he shall enter into bond to the people of the state of Michigan, in such penal sum and with such surety or sureties as the court may fix, conditioned that he will comply with the terms of such order or decree, then the court may suspend sentence therein: Provided further, That upon failure of such person to comply with said undertaking he may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and take a new undertaking and further suspend sentence as may be just and proper." M.C.L. § 750.165; M.S.A. § 28.362.

Preliminarily, we note several well-established rules of statutory construction. In Thomas v. Consumers Power Co., 58 Mich.App. 486, 492, 228 N.W.2d 786 (1975), the Court stated that courts should attempt to construe statutes in a fashion that gives them force and validity and to avoid constructions that will nullify them. Similarly, the Supreme Court has stated that it seeks "to save legislation from unconstitutionality wherever possible by reasonable and permissible interpretation". Fritts v. Krugh, 354 Mich. 97, 114, 92 N.W.2d 604 (1958). All legislation is presumed constitutional and all doubts are resolved in favor of upholding the validity of legislative enactments. People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979); People v. Piasecki, 333 Mich. 122, 52 N.W.2d [108 MICHAPP 700] 626 (1952). When a statute is susceptible to two constructions, one consistent with the constitution and the other inconsistent, the one consistent with the constitution is preferred as that presumptively intended by the Legislature. People v. Dubina, 304 Mich. 363, 369, 8 N.W.2d 99 (1943). Finally, as this Court stated in Simmons v. Marlette Board of Education, 73 Mich.App. 1, 5, 250 N.W.2d 777 (1976):

"Where one section of a statute is ambiguously worded, legislative intent may be found by clear and express language found in other sections. Bidwell v. Whitaker, 1 Mich. 469 (1850). In interpreting a statute we must read the entire act as a whole, and the meaning to be given to one section should be arrived at after due consideration of other sections, so as to produce a harmonious and consistent enactment as a whole. Joslin v. Campbell, Wyant & Cannon Foundry Co., 359 Mich. 420, 102 N.W.2d 584 (1960)."

The statute under which defendant was convicted is part of the Penal Code. M.C.L. § 750.10; M.S.A. § 28.200, provides that, as found throughout the Penal Code, "(t)he masculine gender includes the feminine and neuter genders". This provision indicates a clear legislative intent that the Penal Code apply to females as well as males. In addition, the Michigan Legislature amended the custody and maintenance provisions of the divorce law to provide that either parent may be ordered to pay child support. M.C.L. § 552.17a; M.S.A. § 25.97(1). ¹ It thus [108 MICHAPP 701] appears that the obvious legislative intent was to place fathers and mothers on equal footing with regard to the responsibility of providing child support.

We also note that M.C.L. § 8.3b; M.S.A. § 2.212(2) provides that statutory words importing the masculine gender only may extend and be applied to females as well as males. More importantly, M.C.L. § 750.10; M.S.A. § 28.200 and the original version of M.C.L. § 750.165; M.S.A. § 28.362 were part of the same act of the Legislature, 1931 P.A. 328, a further indication of the Legislature's intent to have the former read into the latter for purposes of application of the penal provision in issue now.

Further, in the case of Navagata v. Navagata, 99 Misc.2d 90, 415 N.Y.S.2d 372, 373 (1979), which involved an application for an order adjudging the plaintiff-husband in contempt for failure to comply with an order awarding defendant-wife temporary alimony, plaintiff argued that the statute under which the alimony order was entered was unconstitutional as being violative of equal protection. In response to this claim, the Court stated that:

"(T)he Court may utilize the principle authorizing it to construe the statute as to avoid an unconstitutional interpretation. (Carter v. Carter, 58 A.D.2d 438, 397 N.Y.S.2d 88). No violence is done to either the purpose or intent of the statute with respect to the award of temporary alimony in appropriate matrimonial actions by construing and interpreting the statute as to equalize the eligibility of a spouse, irrespective of sex or gender, to the benefits thereof. This Court so construes the statute."

[108 MICHAPP 702] In light of the fairly recent extension of child support obligations to mothers and the rules of statutory construction set forth in M.C.L. § 8.3b; M.S.A. § 2.212(2), and that found in M.C.L. § 750.10; M.S.A. § 28.200, as well as the judicial rules of construction as mentioned hereinbefore, including the rule of construction employed by the Court to save the statute in Navagata, we conclude that the statute in question applies equally to males and females and is therefore not violative of equal protection. ²

Defendant's due process challenge is that the statute under which he was convicted is unconstitutionally vague with respect to the conduct proscribed.

Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. People v. Howell, 396 Mich. 16, 21, 238 N.W.2d 148 (1976). The basic standard for determining whether a statute is void for vagueness is found in People v. Herron, 68 Mich.App. 381, 382, 242 N.W.2d 584 (1976), where the Court stated:

" '(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939)."

The parameters of a vagueness inquiry are [108 MICHAPP 703] clearly spelled out in People v. Harbour, 76 Mich.App. 552, 558, 257 N.W.2d 165 (1977), as follows:

"The proper vagueness inquiry is whether the statute 'does not provide fair notice of the conduct proscribed', or whether it 'confers on the...