People v. Westman

• Citation: 685 N.W.2d 423,262 Mich.App. 184
• Decision Date: 05 August 2004
• Docket Number: Docket No. 243956.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George James WESTMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

685 N.W.2d 423
262 Mich.App. 184

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
George James WESTMAN, Defendant-Appellant

Docket No. 243956.

Court of Appeals of Michigan.

Submitted May 5, 2004, at Lansing.

Released for Publication August 5, 2004.

Decided May 27, 2004, at 9:00 a.m

685 N.W.2d 424

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William E. Molner, Assistant Attorney General, and William M. Fagerman, Prosecuting Attorney, for the people

Scott Marshall Neuman, P.C. (by Scott Marshall Neuman), East Lansing, for the defendant on appeal.

Before: MURRAY, P.J., and NEFF and DONOFRIO, JJ.

NEFF, J.

Defendant appeals as of right from his guilty-plea conviction of felony failure to pay child support, MCL 750.165, and to being an habitual offender, third-offense, MCL 769.11.¹ The trial court sentenced him to thirty-five to seventy-two months' imprisonment. We affirm.

I

Defendant pleaded guilty of felony failure to pay child support, MCL 750.165, for conduct that occurred from "July of 1993 to 2002." He now challenges his conviction

685 N.W.2d 425

on the ground that an amendment to the statute in 1999, which altered the nature of the offense, renders his conviction a violation of the Ex Post Facto Clauses of the Michigan and federal constitutions, Const 1963, art 1, § 10; US Const, art I, § 10. We hold that MCL 750.165 does not violate the ex post facto prohibition as applied to defendant because defendant's offense was a continuing offense that began before and continued after the amendment's effective date

II

Ex post facto laws are prohibited by both the Michigan and federal constitutions. People v. Callon, 256 Mich.App. 312, 316, 662 N.W.2d 501 (2003). An ex post facto law is one that affects the prosecution or disposition of cases involving crimes committed before the law's effective date by (1) criminalizing conduct that was innocent, (2) making an act a more serious offense, (3) inflicting greater punishment for a crime, or (4) allowing conviction on lesser evidence. Id. at 317, 662 N.W.2d 501; People v. Haynes, 256 Mich.App. 341, 350, 664 N.W.2d 225 (2003).

The Michigan Ex Post Facto Clause does not afford broader protections than its federal counterpart. Callon, supra at 317, 662 N.W.2d 501. Both clauses are designed to protect citizens against arbitrary and oppressive legislation and to ensure fair notice of conduct that is criminal. Id.

A

In this case, defendant asserts that the 1999 amendment of MCL 750.165 falls into the first category of ex post facto laws. That is, the amendment retroactively affected him by criminalizing action that was legal when it was committed. Defendant asserts that the amended version of MCL 750.165 permitted his conviction absent a showing that he left the state and that he refused or neglected to pay child support. Defendant asserts that he would not have been convicted under the previous law.

Defendant's ex post facto challenge raises questions of law, subject to de novo consideration on appeal. Callon, supra at 315, 662 N.W.2d 501. "Interpretation of constitutional provisions and statutory construction are both questions of law we review de novo." Id.

B

Defendant's offense occurred from July 1993 through 2002. MCL 750.165 was amended effective November 3, 1999. Defendant's offense therefore "straddles" two different versions of MCL 750.165.

Before November 3, 1999, the elements of felony failure to pay child support were (1) a court has ordered an individual to pay child support, (2) the individual refused or neglected to pay child support, and (3) the individual left the state of Michigan. People v. Ditton, 78 Mich.App. 610, 612-614, 261 N.W.2d 182 (1977). Under the amended version of MCL 750.165, evidence that an individual refused or neglected to pay child support and left the state, is no longer necessary to establish felony failure to pay child support. People v. Adams, 262 Mich.App. 89, 683 N.W.2d 729 (2004). The amended statute provides:

... If the court orders an individual to pay support for the individual's former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both. [MCL 750.165(1).]

Defendant was charged and convicted in August 2002, under the amended statute,

685 N.W.2d 426

and, accordingly, there was no showing that defendant left the state.² Nonetheless, these circumstances evince no violation of the constitutional prohibition against ex post facto laws.

Defendant's failure to pay child support began in 1993 and continued through 2002. His offense was a continuing one that occurred after the effective date of the statute's amendment. Because defendant's conduct began before and continued after the statute's amendment, changes effected by the statute did not operate retroactively with respect to defendant. We concur with the holding of the California courts on this issue: "'Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition.'" People v. Grant, 20 Cal.4th 150, 159, 83 Cal.Rptr.2d 295, 973 P.2d 72 (1999), quoting People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (1997).

The holding in Grant, supra, is consistent...