People v. Ward

• Decision Date: 21 June 1994
• Docket Number: Docket No. 160825
• Citation: 520 N.W.2d 363,206 Mich.App. 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathan David WARD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 363

520 N.W.2d 363

206 Mich.App. 38

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathan David WARD, Defendant-Appellant.

Docket No. 160825.

Court of Appeals of Michigan.

Submitted March 1, 1994, at Lansing.

Decided June 21, 1994, at 9:10 a.m.

Released for Publication Sept. 8, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., and Samuel R. Smith, Chief Appellate Atty., for the People.

Patrick K. Ehlmann, Lansing, for defendant on appeal.

Before MacKENZIE, P.J., and GRIBBS and DODGE, ^* JJ.

PER CURIAM.

Defendant was charged in three informations with a total of twenty-one counts of child sexually abusive activity, M.C.L. § 750.145c; M.S.A. § 28.342a, second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(c); M.S.A. § 28.788(3)(1)(c), and first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). In exchange for the dismissal of sixteen counts and an agreement that his minimum sentence would not exceed fifteen years, defendant pleaded guilty of one count of child sexually abusive activity in each of the three case files. Additionally, he pleaded guilty of one count of second-degree CSC in one file and of one count of first-degree CSC in one file. Defendant was sentenced to ten to twenty years' imprisonment for each of the three child sexually abusive activity convictions, five to fifteen years' imprisonment for his second-degree CSC conviction, and fifteen to thirty years' imprisonment for the first-degree CSC conviction. He appeals as of right. We affirm.

Defendant's convictions arise out of three instances in which he and another individual brought thirteen- and fourteen-year-old girls to a house for photography sessions. Both still photographs and videotapes were taken of the girls in nude or erotic poses. Photographs were also taken of defendant fondling the girls and digitally penetrating them, and of the girls licking defendant's penis.

I

Defendant contends that his convictions of both child sexually abusive activity and first- or second-degree criminal sexual conduct violate the Double Jeopardy Clause's prohibition against multiple punishments.

M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c) provides:

(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and ...

* * * * * *

(c) Sexual penetration occurs under circumstances involving the commission of any other felony.

Similarly, M.C.L. § 750.520c(1)(c); M.S.A. § 28.788(3)(1)(c) provides:

(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and ...

* * * * * *

(c) Sexual contact occurs under circumstances involving the commission of any other felony.

The other, or predicate, felony at issue in this case is child sexually abusive activity. M.C.L. § 750.145c; M.S.A. § 28.342a provides that a person is guilty of that offense when the person "persuades, induces, entices, coerces, causes, or knowingly allows" a child to engage in "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity" "for the purpose of producing" "a developed or undeveloped photograph, film, slide, electronic visual image, or sound recording" of such acts. M.C.L. § 750.145c(1)(e), (h), (i), and (2); M.S.A. § 28.342a(1)(e), (h), (i), and (2).

The concept of multiple punishment in double jeopardy jurisprudence has as its purpose the avoidance of more than one punishment for the same offense arising out of a single prosecution. People v. Harding, 443 Mich. 693, 705, 506 N.W.2d 482 (1993) (opinion by Brickley, J.). The double jeopardy protection against multiple punishment serves to ensure that a defendant is not subjected to more punishment than that authorized by the legislative branch of government. People v. Sturgis, 427 Mich. 392, 403, 397 N.W.2d 783 (1986), citing Wayne Co. Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979). Multiple convictions for legislatively linked compound and predicate crimes, such as the offenses in this case, do not necessarily violate the double jeopardy protection against multiple punishments. Rather, the determinative inquiry is what punishment the Legislature intended to be imposed. People v. Robideau, 419 Mich. 458, 485-486, 355 N.W.2d 592 (1984).

In determining legislative intent, a court must identify the type of harm the Legislature was intending to prevent, and the amount of punishment authorized by it. Robideau, supra, p. 487, 355 N.W.2d 592. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. Id. Further, where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. Id.

Here, it is apparent that the criminal sexual conduct statutes and the child sexually abusive activity statute prohibit conduct that is violative of distinct social norms. The criminal sexual conduct statutes involve sexual assaults on persons of all ages. The focus of first-degree CSC is clearly on penetration, Robideau, supra, p. 488, 355 N.W.2d 592, while the focus of second-degree CSC is on sexual contact. The offense of engaging a child in sexually abusive activity, on the other hand, focuses on protecting children from sexual exploitation, assaultive or otherwise. The purpose of the statute is to combat the use of children in pornographic movies and photographs, and to prohibit the production and distribution of child pornography. See Senate Fiscal Agency Bill Analysis, SB 426, December 1, 1987.

Further, while the punishments for the criminal sexual conduct offenses and for the underlying predicate felony of child sexually abusive activity are not identical, ¹ as they were in Robideau, neither are they part of a hierarchy of crimes that build upon a single base statute. This, too, suggests that the Legislature intended imposing dual punishment. See Robideau, supra, pp. 487-488, 355 N.W.2d 592.

Because the Legislature intended to punish conduct violative of distinct social norms and did not authorize punishments based on a continuum of culpability, it is apparent that the Legislature intended that the crimes of criminal sexual conduct and child sexually abusive activity be punished separately. Robideau, supra. Accordingly, we hold that defendant's convictions do not violate the double jeopardy protection against multiple punishments.

II

Defendant also argues that the sentence for his first-degree CSC conviction was disproportionate. People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). In People v. Blount, 197 Mich.App. 174, 175-176, 494 N.W.2d 829 (1992), this Court held that a defendant who pleads guilty and is sentenced in accordance with a plea bargain and sentencing agreement waives the right to challenge the sentence unless there is also an attempt to withdraw the plea for a sound legal reason. Defendant argues that the Blount waiver rule should be given prospective effect only and that, because he was sentenced before the release of the Blount decision, he is entitled to appellate review of his sentence. We disagree.

The general rule in Michigan is that appellate court decisions are to be given full retroactivity unless limited retroactivity is justified. Moorhouse v. Ambassador Ins. Co., Inc., 147 Mich.App. 412, 420-421, 383...