People v. Harns, Docket No. 199055

• Decision Date: 30 January 1998
• Docket Number: Docket No. 199055
• Citation: 576 N.W.2d 700,227 Mich.App. 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Daniel Joseph HARNS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 700

576 N.W.2d 700

227 Mich.App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Daniel Joseph HARNS, Defendant-Appellee.

Docket No. 199055.

Court of Appeals of Michigan.

Submitted Dec. 2, 1997, at Detroit.

Decided Jan. 30, 1998, at 9:00 a.m.

Released for Publication April 30, 1998.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Brian L. Mackie, Prosecuting Atty., and Lenore M. Ferber, Asst. Prosecuting Atty., for People.

Douglas R. Mullkoff, Ann Arbor, for Defendant-Appellee.

Before MICHAEL J. KELLY, P.J., and MARK J. CAVANAGH and N.J. LAMBROS ^*, JJ.

MARK J. CAVANAGH, Judge.

Defendant pleaded nolo contendere to one count of indecent exposure, M.C.L. § 750.335a; M.S.A. § 28.567(1), and one count of fourth-degree criminal sexual conduct, M.C.L. § 750.520e(1)(b); M.S.A. § 28.788(5)(1)(b). Over the prosecutor's objection, the trial court granted defendant's petition for youthful trainee status and sentenced defendant to three years' probation under the Youthful Trainee Act (YTA), M.C.L. § 762.11 et seq.; M.S.A. § 28.853(11) et seq. The prosecutor appeals by leave granted. We reverse and remand for resentencing.

In 1995, defendant was charged with one count of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a), and one count of indecent exposure. The charges arose out of allegations that defendant, who was then seventeen years old, had exposed himself to several girls under the age of six at his parents' home, where his mother ran a small baby-sitting service. It was also alleged that defendant touched the vagina of a 4 1/2-year-old girl after first removing her clothing.

On August 1, 1995, defendant pleaded nolo contendere to a reduced charge of fourth-degree criminal sexual conduct and the count of indecent exposure. Pursuant to the parties' stipulation, the trial court used the related police report as the factual basis for defendant's plea.

On September 8, 1995, the trial court delayed sentencing for ten months so that it could take defendant's request for sentencing under the YTA under advisement while defendant was placed on an electronic monitoring tether program. The prosecutor argued that the trial court did not have authority to place defendant on youthful trainee status. On September 4, 1996, the trial court ¹ held that it did have discretion to grant YTA status. The court then placed defendant on youthful trainee status for a period of three years, with conditions for continued counseling and against unsupervised contact with minor children. In addition, the trial court imposed approximately $2,000 in fines and costs.

On appeal, the prosecutor argues that the trial court erred in finding that defendant was eligible for YTA status. The court's authority to sentence a defendant under the YTA is jurisdictional. People v. Martinez, 211 Mich.App. 147, 149, 535 N.W.2d 236 (1995).

A person who successfully completes youthful trainee status will not be considered to have been convicted of a crime, and the record is closed to public inspection. People v. Dash, 216 Mich.App. 412, 414, 549 N.W.2d 76 (1996). The YTA is a remedial statute and is to be construed liberally for the advancement of the remedy. People v. Bobek, 217 Mich.App. 524, 529, 553 N.W.2d 18 (1996).

The prosecutor first argues that defendant was not eligible for consideration under the YTA because he was convicted of more than one offense. The YTA provides:

If an individual pleads guilty to a charge of a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, or a traffic offense, committed on or after the individual's seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee. As used in this section, "traffic offense" means a violation of the Michigan vehicle code, Act. No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, or a violation of a local ordinance substantially corresponding to that act, that involves the operation of a vehicle and, at the time of the violation, is a felony or a misdemeanor. [M.C.L. § 762.11; M.S.A. § 28.853(11).]

The prosecutor asserts that the language of the statute refers to the commission of only one crime. Therefore, according to the prosecutor, because defendant was convicted of both indecent exposure and fourth-degree criminal sexual conduct, defendant was not eligible for YTA status.

On appeal, we review de novo questions of law regarding statutory interpretation. Bobek, supra at 528, 553 N.W.2d 18. Our goal in interpreting statutes is to ascertain the intent of the Legislature. The first criterion in determining the Legislature's intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. People v. Sheets, 223 Mich.App. 651, 656, 567 N.W.2d 478 (1997).

The Legislature has provided us with the necessary rule of statutory construction to decide this issue. M.C.L. § 8.3b; M.S.A. § 2.212(2) provides in pertinent part: "Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number." See Empire Iron Mining Partnership v. Orhanen, 455 Mich. 410, 428, 565 N.W.2d 844 (1997); Crowley, Milner & Co. v. Macomb Circuit Judge, 239 Mich. 605, 615, 215 N.W. 29 (1927). Thus, the phrases "a criminal offense," or "the criminal offense," can be construed to mean "criminal offenses."

Furthermore, if the Legislature had meant to exclude individuals with more than one conviction from participation in the YTA, it could easily have done so. Where the Legislature has intended to limit similar measures to individuals who are charged or plead guilty of only one offense, it has expressly said so. The general expunction statute applies to "a person who is convicted of not more than 1 offense ...." M.C.L. § 780.621(1); M.S.A. § 28.1274(101)(1). Likewise, the expunction statute in the Public Health Code states: "There may be only 1 discharge and dismissal under this section as to an individual." M.C.L. § 333.7411(1); M.S.A. § 14.15(7411)(1). The omission of similar language from the YTA indicates that the Legislature did not intend to exclude youthful offenders with more than one conviction from participation. ²

Next, the prosecutor argues that defendant is not eligible for YTA status because he pleaded nolo contendere, rather than guilty. This issue is again one of statutory interpretation that we review de novo. Bobek, supra at 528, 553 N.W.2d 18.

The statute permits the court to assign "an individual [who] pleads guilty to a charge of a criminal offense" to YTA status. M.C.L. § 762.11; M.S.A. § 28.853(11). In Dash, supra, this Court held that the statutory language precludes participation by defendants who were convicted following a trial. The Dash panel explained that because the statute "explicitly provides that an individual must plead guilty of a specified offense in order for that individual to be eligible for youthful trainee status," a defendant who is tried and convicted of a specified offense is not eligible. Dash, supra at 414, 549 N.W.2d 76.

In the present case, defendant did not go to trial, but instead entered a plea of nolo contendere. Defendant argues that a nolo contendere plea is treated like a guilty plea under Michigan law. Defendant relies on M.C.L. § 767.37; M.S.A. § 28.977, which states that once the court accepts a no contest plea, "the court shall proceed as if [the defendant] had pleaded guilty." However, the statute

does not provide that a plea of nolo contendere be taken as if it were a guilty plea. All distinction between the two kinds of pleas would be lost by such an interpretation. It does mean that once a court accepts a plea of nolo contendere the court proceeds to sentencing in the same manner as after a plea of guilty. [People v. Chilton, 394 Mich. 34, 39-40,...