People v. Potts
| Decision Date | 25 September 1990 |
| Docket Number | Docket No. 88140 |
| Citation | 461 N.W.2d 647,436 Mich. 295 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kathleen POTTS, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Jerrold Schrotenboer, Asst. Pros. Atty., Jackson, for plaintiff.
State Appellate Defender by Jennifer A. Pilette, Detroit, for defendant.
The defendant pleaded guilty of involuntary manslaughter and received a prison term of from three to fifteen years. She seeks to be resentenced on the ground that the circuit judge erred in applying the revised sentencing guidelines of October 1 1988, to her May 1988 offense. We are persuaded that there was no error.
The defendant was charged with open murder 1 and possession of a firearm during the commission of a felony 2 in connection with the May 1988 fatal shooting of her sixteen-year-old daughter. The incident occurred during an argument at the family home.
In September 1988, the defendant pleaded guilty in Jackson Circuit Court to a reduced charge of involuntary manslaughter, 3 admitting gross negligence in the discharge of a firearm. In exchange for her plea, the Jackson County Prosecutor agreed to the dismissal of the original charges.
The defendant was sentenced on October 20, 1988, to serve a prison term of from thirty-six months to fifteen years. The minimum sentence was in the middle of the recommended range set forth in the second edition of the sentencing guidelines (twelve to sixty months). The second edition took effect October 1, 1988. Administrative Order No. 1988-4, 430 Mich ci.
The defendant challenged her sentence in the Court of Appeals. She argued that, since her offense was committed prior to the effective date of the second edition of the guidelines, the circuit judge should have applied the first edition. As scored by the defendant, the recommended minimum sentence under the earlier edition would have been only zero to thirty-six months. She contended that her actual sentence thus would have been less, since the circuit judge clearly did not intend to impose a sentence at the top of the guidelines. 4
In an opinion per curiam, the Court of Appeals denied relief. 181 Mich.App. 311, 448 N.W.2d 820 (1989). The panel held that the sentencing court did not err in applying the revised guidelines of October 1, 1988, to the defendant's May 1988 offense. The Court reasoned that Administrative Order No. 1988-4 plainly required the use of the second edition in every sentencing proceeding after October 1, and that there was no ex post facto problem because the guidelines were procedural, not substantive.
The defendant asks this Court to overturn the decision of the Court of Appeals and to order that she be resentenced.
We agree with the Court of Appeals that Administrative Order No. 1988-4 required the circuit judge to apply the second edition of the sentencing guidelines when sentencing the defendant on October 20, 1988. The order states, in pertinent part:
430 Mich. ci. (Emphasis added.)
Our conclusion--that use of the second edition is tied to the date that sentences are imposed, rather than to the date that offenses are committed--is consistent with the manner in which the first edition was introduced and revised. This Court initially invited judges to use the guidelines, but did not require them to do so. See Administrative Order No. 1983-3, 417 Mich. cxxi, which took effect May 1, 1983. We subsequently made the use of the first edition mandatory, effective March 1, 1984. Administrative Order No. 1984-1, 418 Mich. lxxx. 5 The guidelines were routinely applied after March 1 in cases where the offenses had occurred prior to that date. 6
The first edition of the sentencing guidelines was revised several times. The State Court Administrative Office issued replacement pages that contained revisions dated October 1982, April 1983, April 1984, and October 1984. These revisions were given immediate effect by sentencing judges. Thus, we reject the defendant's contention that she is entitled to be resentenced because of Administrative Order No. 1988-4. Our inquiry does not end here, however.
The defendant also asserts that application of the second edition of the sentencing guidelines violates the proscriptions against ex post facto laws in the state and federal constitutions.
Const.1963, art. 1, Sec. 10, states:
"No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted."
There are two relevant federal provisions. U.S. Const., art. I, Sec. 9, cl. 3 states:
"No bill of attainder or ex post facto Law shall be passed."
U.S. Const., art. I, Sec. 10, cl. 1, states:
"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." (Emphasis added.)
This Court has reviewed the history of these provisions. People v. Stevenson, 416 Mich. 383, 394, 399, 331 N.W.2d 143 (1982). We have recognized that, although the Ex Post Facto Clause does not apply directly to the judiciary, it applies by analogy through the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Id. at 395, 331 N.W.2d 143; Bouie v. Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964).
The United States Supreme Court considered the Ex Post Facto Clause in Calder v. Bull, 3 U.S. (3 Dall) 386, 1 L.Ed. 648 (1798). Justice Chase observed in that case that the term "ex post facto" predated the American Revolution, and explained his understanding of the laws which it precluded:
Id. at 390. See also Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925).
In a series of more recent cases, the Court has set forth the test for determining whether a law violates the ex post facto provision. In Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), the Court said that there is no violation unless the law alters "substantial personal rights" as opposed to "modes of procedure which do not affect matters of substance." 7 In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Court said that the law must be retrospective, i.e., it must apply to events occurring before its enactment, and that it must disadvantage the offender affected by it. More recently, the Court observed that "[t]he constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed." Miller v. Florida, 482 U.S. 423, 431, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). (Emphasis in original.)
The defendant relies on Miller to argue that retroactive application of the second edition of the sentencing guidelines to her offense violates the ex post facto provision. In Miller, the Court considered a similar question with regard to Florida's sentencing guidelines. There, as here, the defendant's offense was committed when the original guidelines were in effect, but the defendant was sentenced after revisions had increased the minimum range.
There are several important differences between the instant case and Miller. The most important, for purposes of our analysis, is that the Florida guidelines establish a presumptive sentencing range; a judge may depart from the guidelines only by giving "clear and convincing" reasons in writing. The only sentences that are subject to appellate review are those where there has been such a departure. Miller, supra at 426, 107 S.Ct. at 2449.
In Michigan, there is no such "presumptive" range. Judges are permitted to depart from the sentencing guidelines, and are required merely to explain their reasons for doing so. Further, all sentences are subject to appellate review. People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983), People v. Broden, 428 Mich. 343, 408 N.W.2d 789 (1987), 8 and People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).
The differences between the Michigan sentencing guidelines and the Florida scheme are critical to a resolution of the ex post facto question. 9 Sentencing judges in this state are required by this Court's administrative orders to consider the minimum range recommended by the guidelines, but are not bound by it. As the Court of Appeals observed, the guidelines are but "a tool to assist the sentencing judge in the exercise of discretion." 181 Mich.App. at 313, 448 N.W.2d 820.
It cannot be said, therefore, that the Michigan guidelines convey substantive rights. Since there are no presumptive sentences, the guidelines as revised did not increase the punishment for the defendant's...
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People v. Fisher
...the recommended minimum sentence range is ten to twenty-five years. Defendant concedes that our decision in People v. Potts, 436 Mich. 295, 461 N.W.2d 647 (1990), which was decided during the course of defendant's appeals, obviates the ex post facto issue. In Potts, the defendant challenged......
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Slusher v. Mackie
...was not binding on the trial court. Slusher, 2015 WL 1446595, at *9 (citing People v. Hegwood, 465 Mich. 432, 438 (2001); People v. Potts, 436 Mich. 295, 302-303 (1990)). Because the sentencing scheme did not establish a mandatory minimum sentence, the state court reasoned, Alleyne's prohib......
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People v. Dunn
...against ex post facto laws even though the witness was precluded from testifying at the time of the crime); People v. Potts, 436 Mich. 295, 303, 461 N.W.2d 647 (1990) ("There is no violation of the ex post facto provision where the enactment at issue alters modes of procedure rather than su......
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People v. Williams, Docket Nos. 130174
...the guidelines be used in all sentencing proceedings that, as was the case here, take place after October 1, 1988. People v. Potts, 436 Mich. 295, 298, 461 N.W.2d 647 (1990). For his fourth argument, defendant contends that he was not sentenced under the appropriate statute with regard to t......