People v. Hendrick

• Decision Date: 07 July 2004
• Docket Number: Docket No. 248892.
• Citation: 683 N.W.2d 218,261 Mich.App. 673
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darin HENDRICK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

683 N.W.2d 218

261 Mich.App. 673

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darin HENDRICK, Defendant-Appellant.

Docket No. 248892.

Court of Appeals of Michigan.

Submitted February 3, 2004, at Detroit.

Decided May 4, 2004, at 9:00 a.m.

Released for Publication July 7, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Marla R. McCowan), for the defendant on appeal.

Before: MARK J. CAVANAGH, P.J., and GAGE and ZAHRA, JJ.

ZAHRA, J.

This case is before us on remand from the Supreme Court for consideration as on leave granted.¹People v. Hendrick, 468 Mich. 918, 662 N.W.2d 757 (2003). After defendant violated his probation, the trial court sentenced him to one to five years' imprisonment for his conviction of attempted first-degree home invasion, MCL 750.92; MCL 750.110a(2), and ten to twenty years' imprisonment for his conviction of possession of a Molotov cocktail, MCL 750.211a. The Supreme Court ordered this Court to review the following issues on appeal:

(1) whether the legislative sentencing guidelines apply to sentences imposed after probation violation, and (2) if not, whether the legislative guidelines permit application of the People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), proportionality principles in such situations. [Hendrick, supra at 918, 662 N.W.2d 757.]

We hold that the legislative sentencing guidelines apply to sentences imposed after a probation violation. Because defendant's sentence for possession of a Molotov cocktail is above the legislative guidelines range and the trial court did not articulate substantial and compelling reasons to depart upward from this range, we vacate defendant's sentence for possession of a Molotov cocktail and remand for resentencing.

I. Facts and Procedure

In March 2000, defendant pleaded guilty of attempted first-degree home invasion, and was sentenced to five years' probation, the first year to be served in jail. In April 2001, defendant pleaded guilty of possession of a Molotov cocktail, and was sentenced to five years' probation, the first year to be served in jail. The trial court held a probation violation hearing and determined that defendant's conviction of possession of a Molotov cocktail and his failure to report to the probation department violated the terms of probation imposed for his conviction of attempted first-degree home invasion. In lieu of imposing additional punishment, the trial court continued defendant's probation. In July 2001, defendant was arrested for walking on a public street while in possession of a 12 gauge shotgun. The trial court found that this conduct violated the terms of defendant's probation, revoked his probation, and sentenced him to one to five years' imprisonment for his conviction of attempted first-degree home invasion and ten to twenty years' imprisonment for his conviction of possession of a Molotov cocktail. In imposing these sentences, the trial court stated that the legislative sentencing guidelines did not apply to defendant's sentences, because he was being sentenced after violating his probation.

II. Analysis

A. Standard of Review

The resolution of whether the legislative sentencing guidelines apply to sentences imposed after a probation violation is a matter of statutory interpretation, which we review de novo. People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003).

B. The Legislative Guidelines Apply to Sentences Imposed After a Probation Violation

Before 1983, sentencing guidelines did not exist in Michigan and trial courts sentenced convicted offenders to a period within the statutory minimums and maximums for any given offense. People v. Babcock, 469 Mich. 247, 253, 666 N.W.2d 231 (2003) (On Remand), 258 Mich.App. 679, 672 N.W.2d 533 (2003). In 1983, the Supreme Court developed judicial sentencing guidelines in order to "`eliminate most of the serious inequities in the indeterminate sentence process and thus obviate to a great extent the necessity for appellate review of sentences.'" People v. Clark, 147 Mich.App. 237, 242, 382 N.W.2d 759 (1985), quoting Sentence Review Committee Report and Recommendation, pp 29-30 (July, 1982). As explained in People v. Hegwood, 465 Mich. 432, 438, 636 N.W.2d 127 (2001), the judicial sentencing guidelines were

"mandatory" only in the sense that the sentencing court was obligated to follow the procedure of "scoring" a case on the basis of the circumstances of the offense and the offender, and articulate the basis for any departure from the recommended sentence range yielded by this scoring. However, because the recommended ranges found in the judicial guidelines were not the product of legislative action, a sentencing judge was not necessarily obliged to impose a sentence within those ranges.

The judicial sentencing guidelines were not applicable to a wide variety of offenses, including sentences imposed after probation violations. People v. Cotton, 209 Mich.App. 82, 83-84, 530 N.W.2d 495 (1995).

In 1998, the Legislature enacted statutory sentencing guidelines that apply to certain enumerated felonies committed on or after January 1, 1999. MCL 777.1 et seq.; MCL 769.34(2). "The evident purposes [for enacting the legislative sentencing guidelines] included reduction of sentencing disparity, elimination of certain inappropriate sentencing considerations, acceptance of [the Michigan Supreme Court's] Tanner² rule, encouragement of the use of sanctions other than incarceration in the state prison system, and resolution of a potential conflict in the law." People v. Garza, 469 Mich. 431, 435, 670 N.W.2d 662 (2003). Under the legislative guidelines, a court's sentencing discretion is limited, and sentences must be imposed in accordance with the appropriate sentence range. MCL 769.34(2); Hegwood, supra at 438, 636 N.W.2d 127. Departure from the guidelines may occur only if a court has substantial and compelling reasons to do so and states the reasons for departure on the record. MCL 769.34(3); Hegwood, supra at 439, 636 N.W.2d 127. A departure from the legislative guidelines range must render the sentence proportionate to the seriousness of the defendant's conduct and the individual's criminal history. Babcock, supra, 469 Mich. at 264, 666 N.W.2d 231.

Defendant argues that the legislative guidelines apply to sentences imposed after a probation violation, and that the trial court erred in imposing a sentence above the guidelines without providing substantial and compelling reasons for doing so. We must interpret the legislative sentencing guidelines to determine whether they apply to sentences imposed following the violation of probation. When interpreting a statute,

our primary goal is to ascertain and give effect to the intent of the Legislature. To do so, we begin by examining the language of the statute. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and the statute is enforced as written. Stated differently, a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. [People v. Phillips, 469 Mich. 390, 395, 666 N.W.2d 657 (2003) (internal citations and quotation marks omitted).]

Both MCL 769.34(2) and MCL 771.4 are applicable to this case and are therefore statutes in pari materia. The Michigan Supreme Court has explained statutes in pari materia as follows:

"Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose. It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other." [State Treasurer v. Schuster, 456 Mich. 408, 417, 572 N.W.2d 628 (1998), quoting Detroit v. Michigan Bell Tel. Co., 374 Mich. 543, 558, 132 N.W.2d 660 (1965) (citations omitted from Michigan Bell Tel Co).]

It is a well-recognized principle that the Legislature is presumed to be cognizant of all existing statutes when enacting new legislation. Jenkins v. Patel, 256 Mich.App. 112, 126, 662 N.W.2d 453 (2003). Statutes that may appear to conflict are to be read together and reconciled, if at all possible. Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 65, 214 N.W.2d 803 (1974). When two statutes are capable of a construction that avoids conflict, that construction should control. Jackson Community College v. Dep't of Treasury, 241 Mich.App. 673, 681, 621 N.W.2d 707 (2000). Only when conflict exists between two statutes should the one that is more specific to the subject matter prevail. In re Brown, 229 Mich.App. 496, 501, 582 N.W.2d 530 (1998).

Here, there is no conflict or ambiguity requiring statutory construction. MCL 769.34(2) provides, in pertinent part, that "the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed." Because defendant committed the felonies for which he was sentenced after January 1, 1999, and the felonies were specifically identified as felonies subject to the legislative sentencing guidelines, the guidelines apply to sentencing following his probation violation. The language of MCL 769.34(2) is very clear and no exception to...