People v. Waterman, Docket No. 65579

• Decision Date: 09 November 1984
• Docket Number: Docket No. 65579
• Citation: 358 N.W.2d 602,137 Mich.App. 429
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Ray WATERMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 602

358 N.W.2d 602

137 Mich.App. 429

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Ray WATERMAN, Defendant-Appellant.

Docket No. 65579.

Court of Appeals of Michigan.

Submitted June 7, 1983.

Decided Sept. 17, 1984.

Released for Publication Nov. 9, 1984.

David E. McClernan, Pros. Atty., Corunna, for the People.

James R. Clatterbaugh, Owosso, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Michael A. Nickerson, Asst. Atty. Gen., for amicus curiae.

Before DANHOF, C.J., and ALLEN and HANSEN ^*, JJ.

HANSEN, Judge.

Defendant pled guilty to first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), assault with intent to commit great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), pursuant to a sentence bargain. ¹ The defendant was sentenced to concurrent terms of life imprisonment for the criminal sexual conduct conviction and from six years and eight months to ten years for the assault conviction, and a consecutive term of two years imprisonment for the felony-firearm conviction. The defendant's sentence bargain was based upon the premise that M.C.L. Sec. 791.234; M.S.A. Sec. 28.2304, the so-called "Lifer Law", would apply to his life sentence, making him eligible for parole consideration after serving ten years. He appeals as of right.

Defendant's contention on appeal centers around OAG, 1979-1980, No. 5583, p. 438 (October 16, 1979), in which the Attorney General determined that the 1978 Initiative Proposal B, in effect, repealed the "Lifer Law" by eliminating parole consideration for prisoners with non-mandatory life sentences. The defendant contends that OAG 5583 precludes his parole consideration under the "Lifer Law", making his sentence bargain illusory. The people argue that OAG 5583 is incorrect, i.e., Proposal B did not amend or repeal the "Lifer Law". The people further argue that the Attorney General's opinion regarding the effects of Proposal B on the "Lifer Law" is not binding on this or any court. The Attorney General has been allowed to file an amicus curiae brief on appeal.

The issue on appeal is whether the 1978 Initiative Proposal B expressly or impliedly repealed M.C.L. Sec. 791.234; M.S.A. Sec. 28.2304, the "Lifer Law".

In determining whether the legislative enactment of the 1978 Initiative Proposal B repealed the "Lifer Law", we are guided by the following principles of statutory construction. First, the question of whether a statute is repealed by a subsequent statute relating to the same subject matter involves a determination of the legislative intent. When the legislative intent is clearly expressed, it is entitled to the utmost respect. Second, the presumption is against a repeal by implication, the theory being that had the Legislature intended a repeal, it would have expressly so stated by designating the specific acts or parts of acts repealed. Third, the earlier and later statutes involved in any case must be construed together and reconciled, with each being given force and effect if possible. Finally, if there is such repugnance that both statutes cannot operate, then the last expression of the legislative will must control. See Jackson v. Michigan Corrections Comm., 313 Mich. 352, 21 N.W.2d 159 (1946); Detroit Edison Co. v. Dep't of Revenue, 320 Mich. 506, 31 N.W.2d 809 (1948).

The 1978 Initiative Petition Proposal B provided in part as follows:

"PROPOSAL B

"Proposed Initiation of Legislation

"(AMENDMENT OF EXISTING LAW, PROPOSED BY INITIATIVE PETITION, TO PROHIBIT THE GRANTING OF A PAROLE TO A PRISONER CONVICTED OF CERTAIN CRIMES INVOLVING VIOLENCE OR INJURY TO PERSON OR PROPERTY UNTIL AT LEAST AFTER THE MINIMUM SENTENCE HAS BEEN SERVED.)

"The following is the language of the proposed law as it appears on the Petition to Initiate Legislation.

"(Words with a line drawn through them are claimed to be in the existing law and will not appear in the proposed law. Words appearing in capital letters are new language.)

"An initiative petition to amend section 33 of Act No. 232 of the Public Acts of 1953, entitled 'An act to revise, consolidate and codify the laws relating to prebationers and probation officers and herein defined, to pardons, reprieves, commutations and paroles, to the administration of penal institutions, correctional farms and probation recovery camps, to prison labor and prison industries, and the supervision and inspection of local jails and houses of correction; to create a state department of corrections, and to prescribe its powers and duties; to provide for the transfer to and vesting in said department of powers and duties vested by law in certain other state boards, commissions and officers, and to abolish certain boards, commissions and offices the powers and duties of which are hearby transferred; to prescribe penalties for the violation of the provisions of this act; and to repeal all acts and parts of acts inconsistent with the provisions of this act,' being section 791.233 of the Compiled Laws of 1970; and to add section 33b.

"THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

"Section 1. Section 33 of Act No. 232 of the Public Acts of 1953, being section 791.233 of the Compiled Laws of 1970, is amended and section 33b is added to read as follows:

"Sec. 33 (1) The grant of A parole shall be subject to ALL OF the following :

"(a) A prisoner shall NOT be given his liberty on parole until the board has reasonable assurance after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that THE PRISONER will not become a menace to society or to the public safety.

"(b) A parole shall NOT be granted to A prisoner until THE PRISONER has served the minimum term imposed by the court less allowances for good time or special good time TO WHICH THE PRISONER may be entitled to by statute EXCEPT THAT prisoners shall be eligible for parole prior to the expiration of their minimum terms of imprisonment whenever the sentencing judge or THE JUDGE'S successor in office GIVES written approval of the parole of THE prisoner prior to the expiration of THE minimum terms of imprisonment.

"(C) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (B), A PAROLE SHALL NOT BE GRANTED TO A PRISONER SENTENCED FOR THE COMMISSION OF A CRIME DESCRIBED IN SECTION 33B UNTIL THE PRISONER HAS SERVED THE MINIMUM TERM IMPOSED BY THE COURT, WHICH MINIMUM TERM SHALL NOT BE DIMINISHED BY ALLOWANCES FOR GOOD TIME, SPECIAL GOOD TIME, OR SPECIAL PAROLE." (Emphasis added.)

It is clear that the use of the wording in the initiative, "An initiative petition to amend section 33 of Act No. 232 of the Public Acts of 1953" indicates that the express purpose of Initiative Proposal B was to amend Sec. 33. Furthermore, the wording "Section 1. Section 33 of Act No. 232 of the Public Acts of 1953, being section 791.233 of the Compiled Laws of 1970, is amended * * * " also indicates that the express purpose was to amend Sec. 33. In addition, prior to the passage of Proposal B, Sec. 33 was amended by the Legislature to provide in part:

"(b) A parole shall not be granted to a prisoner until the prisoner has served the minimum term imposed by the court less allowances for good time or special good time to which the prisoner may be entitled to by statute, except that prisoners shall be eligible for parole prior to the expiration of their minimum terms of imprisonment whenever the sentencing judge or the judge's successor in office gives written approval of the parole of the prisoner prior to the expiration of the minimum terms of imprisonment."

After the passage of Proposal B, a new subsection (c) was added to Sec. 33. Subsection (c) provided as follows:

"(c) Notwithstanding the provisions of subsection (b), a parole shall not be granted to a prisoner sentenced for the commission of a crime described in section 33b until the prisoner has served the minimum term imposed by the court, which minimum term shall not be diminished by allowances for good time, special good time, or special parole." (Emphasis added.)

The use of the wording "Notwithstanding the provisions of subsection (b) * * * ", of the new subsection (c) of Sec. 33 is a further indication that the amended language expressly amended only Sec. 33. Finally, there was no mention whatsoever in Initiative Proposal B of Sec. 34 of 1953 PA 232, the "Lifer Law". We, therefore, conclude that the express purpose of Initiative Proposal B was to amend Sec. 33 only and was not intended to repeal Sec. 34, the "Lifer Law". The amendatory language of Initiative Proposal B thus resulted only in the repeal of the allowances for good time, special good time and special parole as set forth in subsection (b) of Sec. 33.

However, the Attorney General in OAG, No 5583 found that the "special parole" set forth in subsection (b) of Sec. 33, which was repealed by Initiative Proposal B, was in fact the ten calendar year parole consideration provision of Sec. 34. He, therefore, concluded that Initiative Proposal B repealed any consideration for parole for prisoners serving non-mandatory life sentences. The minimum term set by the court would thus be, in effect, life imprisonment. Such a result would, of necessity, raise a non-mandatory life sentence to the same status as that of a mandatory life sentence without parole for first-degree murder pursuant to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, or a nonparolable life sentence for a major controlled substance offense.

The "Lifer Law" provided in part in 1978:

"A convict who is imprisoned in a prison or reformatory of this state under sentence for life ... other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10...