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People v. Arnold

Supreme Court of Michigan

July 19, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
LONNIE JAMES ARNOLD, Defendant-Appellee.

          Argued January 10, 2018

          Stephen J. Markman, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement, Chief Justice.

         Lonnie J. Arnold was charged with aggravated indecent exposure, MCL 750.335a(2)(b), indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c), and being a fourth-offense habitual offender, MCL 769.12. He was convicted of both indecent-exposure counts after a jury trial in the Monroe Circuit Court. The court, Michael A. Weipert, J., sentenced defendant to 25 to 70 years' imprisonment for indecent exposure by a sexually delinquent person, to be served concurrently with a 2-to-15-year sentence for aggravated indecent exposure. Defendant appealed, arguing that the court was required to sentence him to one day to life in prison under MCL 750.335a(2)(c). The Court of Appeals, Gleicher, P.J., and Cavanagh and Fort Hood, JJ., initially held in an unpublished per curiam opinion, issued April 12, 2016 (Docket No. 325407), that, under People v Buehler (On Remand), 271 Mich.App. 653 (2006) (Buehler II), rev'd 477 Mich. 18 (2007) (Buehler III), the sentencing guidelines, rather than MCL 750.335a(2)(c), controlled sentences for defendants convicted of indecent exposure by a sexually delinquent person, but because People v Lockridge, 498 Mich. 358 (2015), had rendered the sentencing guidelines advisory in the time since defendant had been sentenced, the panel remanded the case to the sentencing court to determine whether it would have adhered to the guidelines had it known they were only advisory. Defendant moved for reconsideration, arguing that the Court of Appeals had erred by relying on Buehler II. While the motion was pending, the Court of Appeals decided People v Campbell, 316 Mich.App. 279 (2016), which held that defendants convicted of indecent exposure by a sexually delinquent person must be sentenced to one day to life in prison. Consequently, the panel granted defendant's motion for reconsideration, vacated its previous opinion, and, in an unpublished per curiam opinion issued September 22, 2016, held that, under Campbell, defendant must be sentenced to one day to life in prison. The Supreme Court granted the prosecutor's application for leave to appeal. 500 Mich. 964 (2017).

         In a unanimous opinion by Justice Clement, the Supreme Court held:

MCL 750.335a(2)(c) does not require an individual convicted of being a sexually delinquent person to be given a sentence of one day to life in prison. The one-day-to-life scheme was correctly construed in People v Kelly, 186 Mich.App. 524 (1990), as an option that a trial court may consider imposing alongside the other statutory penalties available under the statute. The decisions to the contrary in Campbell and in People v Butler, 465 Mich. 940 (2001), were overruled. The changes from "may be" and "shall" to "is" that 2005 PA 300 made to 1952 PA 73 were merely stylistic. The reasoning in Buehler III, which misconstrued the nature of the one-day-to-life sentencing option provided by MCL 750.335a and MCL 767.61a and inaccurately indicated that the 2005 PA 300 amendment of MCL 750.335a might have been meaningful, was disavowed. The Court of Appeals judgment was vacated, and the case was remanded to the Court of Appeals for reconsideration.
1. Criminal defendants charged with committing certain sex crimes can also be charged with having been a "sexually delinquent person" at the time of the offense. The sexually delinquent person scheme dates back to a series of statutes adopted in 1952, which were a further development of a scheme from the mid-1930s that allowed "sexual psychopaths" to be committed indefinitely to a state mental institution until their condition no longer presented a threat to public safety. The legislative history of these schemes indicated that sexual delinquency was considered a mental illness that precluded a fixed sentence and required a more flexible and less determinate sentencing framework.
2. The predicate offense for sexual-delinquency status with which defendant was charged was indecent exposure. Under MCL 750.335a(2)(a) and (b), indecent exposure is a misdemeanor punishable by not more than one year in prison, or not more than two years if aggravated circumstances are present, but when committed by a sexually delinquent person, MCL 750.335a(2)(c) provides that the offense is punishable for an indeterminate term, the minimum of which is one day and the maximum of which is life. MCL 767.61a sets forth the procedure by which an individual accused of one of the predicate offenses can also be accused of being a sexually delinquent person, stating that in any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is one day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. MCL 767.61a further provides that upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges, the court may impose any punishment provided by law for such offense.
3. Kelly correctly construed the one-day-to-life sentence set forth in MCL 750.335a(2)(c) as not mandatory but rather an optional alternative. MCL 767.61a characterizes the one-day-to-life sentence as an alternate sentence. The dictionary indicates that the adjective "alternate" is related to "alternative," which may be used to refer to a variant or substitute in cases where no choice is involved, but that this usage also coexists with the notion of "alternate" as "optional." In 1952 PA 73, the Legislature provided that indecent exposure was "punishable by imprisonment in the county jail for not more than 1 year" and, if committed by a sexually delinquent person, "may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life." The word "punishable" expresses only the potential for punishment, not its necessity, meaning that either up to a year in jail or a one-day-to-life sentence were possibilities. Further, the statute stated that, when dealing with a sexually delinquent person, the offense "may be" punishable by a one-day-to-life sentence, and "may" is ordinarily permissive. Moreover, the Legislature is capable of adopting nondiscretionary sentences and has done so for other crimes. Construing the "alternate sentence" for sexually delinquent persons as entirely optional was also more consistent with the broader law of sentencing in Michigan when the sexual-delinquency scheme was adopted, at which time, before the statutory sentencing guidelines' enactment, a judge faced with an adjudicated sexual delinquent guilty of indecent exposure could choose any legally available sentencing option the judge deemed appropriate. Construing the one-day-to-life option as an alternative that the trial court was free to consider alongside an ordinary criminal sentence of up to one year in jail was also supported by the history of the sexual-delinquency scheme. In light of these considerations, Kelly correctly construed the one-day-to-life alternate sentence as an option a sentencing judge could draw upon, alongside and not to the exclusion of other available options. The statement in Butler that there was no alternative to the mandatory indeterminate sentence of one day to life in prison when the trial court chooses to incarcerate a person convicted under MCL 750.335a and MCL 750.10a was incorrect. One day to life was not a mandatory sentence even when the trial court chose to incarcerate the defendant, nor has any aspect of the legislative sentencing guidelines purported to make the one-day-to-life sentence mandatory.
4. Kelly correctly held that the sentence of one day to life was not modifiable. While 1952 PA 73 stated that indecent exposure by a sexually delinquent person may be punishable by a special indeterminate sentence, it also stated that if such a sentence was imposed, the minimum of the term shall be one day and the maximum of the term shall be life. The use of the word "shall" suggests that a trial court had no discretion to further modify the terms of the sentence, because if it chose to avail itself of the special indeterminate sentence, it had to sentence according to the special sentence's terms. Moreover, MCL 767.61a characterizes "one day to life" as an "alternate" sentence, which indicates that it ought to function in some distinct way from a term-of-years sentence. The history of the enactment of the sexual-delinquency scheme further supports this conclusion. While 1952 PA 72 has since been repealed, it was adopted contemporaneously with the sexual-delinquency scheme, and it directed the Department of Corrections on how to process persons paroled from a sentence of from one day to life. There were no instructions for how to process persons paroled from a sentence of, for example, two days to life. Construing "one day to life" as being nonmodifiable was also consistent with the history of the sexual-delinquency scheme, the purpose of which was to create a different sentencing option in which the judge gave up control over the amount of time the defendant served to experts who would assess when the defendant was well enough to rejoin society.
5. Kelly correctly held that the one-day-to-life sentencing scheme was an exception to the provision in MCL 769.9(2) that prohibits a court from imposing a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence, otherwise known as the ban on "life tails." MCL 769.9(2) applies only to "cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years." The phrasing "life or any term of years" is used verbatim in a variety of criminal statutes. When MCL 750.335a was adopted, it spoke of "imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life," and MCL 767.61a speaks of "an indeterminate term, the minimum of which is 1 day and the maximum of which is life." This difference in wording suggested that sexual-delinquency cases should be removed from MCL 769.9(2). Moreover, because MCL 769.9(2) is a general indeterminate sentencing statute while the sexual-delinquency scheme is a specific, integrated scheme, the more specific statute controls. Therefore, the one-day-to-life sentence the Legislature adopted in 1952 was an alternative sentencing option that existed alongside other options, such as a life sentence or a term of years.
6. The decision in Buehler III was based on a flawed initial premise about the sexual-delinquency scheme, and it did not appreciate the nature of the one-day-to-life sentence and the tension between it and the sentencing guidelines. The remand order in Buehler directed the Court of Appeals to compare the guidelines against "the indeterminate sentence prescribed by MCL 750.335a." But MCL 750.335a did not prescribe anything; instead, it only made an option available. Buehler also presumed that the trial court's deviation from the sentencing guidelines should have been the end of that case's analysis. But at least until the adoption of the sentencing guidelines, no sentence on the Class A sentencing grid would even have been legal for a judge to impose on a sexually delinquent person guilty of indecent exposure. Buehler III did not consider whether the adoption of the legislative sentencing guidelines could make legal a sentence which would not otherwise have been legal before the guidelines were adopted. Accordingly, Buehler III was not a binding statement of the proper interpretation of these statutes.
7. Campbell was incorrectly decided. In Campbell, the Court of Appeals held that the conflict between the statutory language provided under MCL 750.335a(2)(c) and the sentencing guidelines, MCL 769.34, must be resolved in favor of applying MCL 750.335a(2)(c) in light of the fact that the sentencing guidelines were rendered advisory by People v Lockridge, 498 Mich. 358 (2015), whereas the sentence provided under MCL 750.335a(2)(c) was stated in mandatory terms. First, MCL 750.335a(2)(c) is not "stated in mandatory terms." When adopted, it said that a sexually delinquent person who committed indecent exposure "may be punishable . . . for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life." After 2005 PA 300, it now says that indecent exposure by a sexually delinquent person "is punishable . . . for an indeterminate term, the minimum of which is 1 day and the maximum of which is life." This change in wording had no effect on the meaning of the statute and was merely stylistic. Further, MCL 750.335a(2)(c) still says only that the offense is punishable by a one-day-to-life sentence, and "punishable" expresses only the possibility of punishment, not its necessity. Moreover, MCL 767.61a has not been amended, meaning that it still characterizes one day to life as an alternate sentence, not a mandatory sentence. And MCL 767.61a lays out a procedure common to all five sexual-delinquency crimes, yet each of the other four still uses the former "may be punishable" and "shall be 1 day . . . shall be life" wording. Because the sexual-delinquency alternative sentence is intended to work the same for all five offenses, if it is optional for the others, it must still be optional for indecent exposure. Second, Campbell ascribed inappropriate significance to Lockridge, which concluded that the scoring process for the legislative sentencing guidelines violated the Sixth Amendment and, as a remedy for that constitutional violation, directed that henceforth the guidelines would be only advisory. Neither identifying that problem nor crafting that remedy illuminated whether the adoption of the sentencing guidelines and the classification of indecent exposure by a sexually delinquent person as a Class A felony could make legal a sentence which would not have been legal before the adoption of the sentencing guidelines. Third, the Court of Appeals relied on the series of decisions in Buehler, which misconstrued the nature of the one-day-to-life sentencing option provided by MCL 750.335a and MCL 767.61a and inaccurately indicated that the 2005 PA 300 amendment to MCL 750.335a might have been meaningful. For these reasons, Campbell was set aside.
8. Given the significance of this decision, which embraced Kelly, overruled Butler, and disavowed Buehler, the case was remanded to the Court of Appeals for reconsideration in light of the revised state of the law. On remand, the Court of Appeals was directed to resolve what effect the adoption of the legislative sentencing guidelines had on the operation of the sexual-delinquency scheme as it was construed before the adoption of the guidelines.

         Court of Appeals judgment vacated; case remanded to the Court of Appeals.

         BEFORE THE ENTIRE BENCH

          OPINION

          Clement, J.

         In this case we determine whether individuals convicted of being "sexually delinquent persons" must be given a "1 day to life" prison sentence in accordance with MCL 750.335a(2)(c). We conclude that a "1 day to life" sentence has never been required by the statutory scheme, overruling the Court of Appeals' contrary conclusion in People v Campbell, 316 Mich.App. 279; 894 N.W.2d 72 (2016), and remand this case to the Court of Appeals for reconsideration in light of our conclusion.

         I. FACTS AND PROCEDURAL HISTORY

         Defendant Lonnie Arnold masturbated in front of an employee at the Monroe Public Library in January 2014. He was charged with aggravated indecent exposure, MCL 750.335a(2)(b), indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c), and also with being a fourth-offense habitual offender, MCL 769.12. He was convicted after a jury trial on both substantive indecent-exposure counts.

         At sentencing, the Department of Corrections (DOC) recommended[1] that defendant serve 225 months to 40 years in prison on the count of indecent exposure by a sexually delinquent person, to be served concurrently with 2 to 15 years on the aggravated indecent-exposure count.[2] At sentencing, defense counsel, Steven Hyder, asked that defendant be given "1 day to life":

The law still says that a minimum term of sentence one day to life is what the sentence should be. . . . [T]his Court can sentence him to one day on any conviction, one day to life imprisonment. I don't believe that you have to follow the guidelines for the habitual offender and follow them in sentencing him to 225 months, is what the recommendation is, Judge.

         The trial judge, however, rejected this request, concluding that it was not legal:

The Court: I will tell you this, Mr. Hyder, if I did that one day to life, DOC would write to me and say I cannot sentence him to life. They would say you have to set a maximum because I've had that happen on other cases already.
Mr. Hyder: Apparently, there's conflict between [the DOC] then and the statute because I'm sure this Court will review the statute in depth, and I'm sure the Court has saw what the sentence is on-on the law scope. I'm relying upon the-
The Court: Well, I'll just tell you this. I have to give him a tail. I can't just say life because DOC will write to me and say you can't do that. There's a statute on it that says that. Okay.

         The trial court sentenced defendant to 25 to 70 years' imprisonment on the controlling count, to be served concurrently with a 2-to-15-year sentence for aggravated indecent exposure.[3]

         In the Court of Appeals, defendant argued that he had to be sentenced to "1 day to life" rather than under the sentencing guidelines. In an unpublished opinion, the panel concluded that the sentencing guidelines still controlled sentences for defendants convicted of indecent exposure by a sexually delinquent person, relying on People v Buehler (On Remand), 271 Mich.App. 653; 723 N.W.2d 578 (2006) (Buehler II).[4] That said, during the pendency of defendant's appellate proceedings this Court had decided People v Lockridge, 498 Mich. 358; 870 N.W.2d 502');">870 N.W.2d 502 (2015), making the sentencing guidelines advisory. The panel therefore remanded to the trial court to determine whether it would have adhered to the guidelines had it known they were only advisory.

         Defendant moved for reconsideration, arguing that the Court of Appeals erred by relying on Buehler II. In the meantime, the Court issued its opinion in People v Campbell, 316 Mich.App. 279; 894 N.W.2d 72 (2016), in which it held that defendants convicted of indecent exposure by a sexually delinquent person must be sentenced to "1 day to life" under MCL 750.335a(2)(c). Id. at 300. Consequently, the panel in the instant case granted reconsideration and, in an unpublished opinion, held that defendant, like the defendant in Campbell, must be sentenced to "1 day to life." People v Arnold (On Reconsideration), unpublished per curiam opinion of the Court of Appeals, issued September 22, 2016 (Docket No. 325407), p 2. We then granted leave to appeal. People v Arnold, 500 Mich. 964 (2017).

         II. STANDARD OF REVIEW

         Questions of statutory interpretation are subject to de novo review. People v Babcock, 469 Mich. 247, 253; 666 N.W.2d 231 (2003).

         III. LEGAL BACKGROUND

         A. SEXUAL DELINQUENCY IN MICHIGAN

         Criminal defendants charged with committing certain sex crimes also can be charged with having been a "sexually delinquent person" at the time of the offense. In People v Winford, 404 Mich. 400, 405-406; 273 N.W.2d 54 (1978), we discussed the basic contours of the sexually-delinquent-person scheme:

The history of sexual delinquency legislation clearly indicates the Legislature's intent to create a comprehensive, unified statutory scheme. This legislation was enacted to provide an alternate sentence for certain specific sexual offenses where evidence appeared to justify a more flexible form of incarceration. . . .
To this end, the Legislature introduced language into several previously existing categories of sexual offenses to allow prosecution for sexual delinquency. . . .
To help implement these statutory changes, the Legislature also separately enacted a definitional provision and a procedural provision as general guidelines in sexual delinquency prosecutions.

Winford thus laid out three main components of the sexually-delinquent-person scheme: (1) predicate offenses that are eligible for "a more flexible form of incarceration" when committed by a sexually delinquent person, (2) a definition of "sexually delinquent persons, "[5] and (3) a "procedural provision" containing charging instructions.

         The predicate offense for sexual delinquency status with which defendant in the instant case was charged is indecent exposure. The governing statute provides:

(1) A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
(a) Except as provided in subsection (b) or (c), the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1, 000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, [or] buttocks . . . while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2, 000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life. [MCL 750.335a.]

         Thus, indecent exposure is a one-year misdemeanor, with aggravated circumstances making it a two-year "misdemeanor, "[6] but when committed by a "sexually delinquent person," the offense "is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life." The "procedural provision," MCL 767.61a, sets out how an individual accused of one of the predicate offenses can also be accused of being a sexually delinquent person:

In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. . . . Upon a verdict of guilty to the first charge or to both charges or upon a plea of ...

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