[Copyrighted Material Omitted]
Circuit Court. LC No. 13-040406-FH.
PEOPLE OF MI, PLAINTIFF-APPELLEE: JONATHAN A. JONES.
LONNIE JAMES ARNOLD, DEFENDANT-APPELLANT: MARILENA
Before: GLEICHER, P.J., and MURRAY, C.J. and CAVANAGH, J.
Mich.App. 595] ON REMAND
Violation of the statute proscribing indecent exposure by a
sexually delinquent person, MCL 750.335a(2)(c) " is
punishable by imprisonment for an indeterminate term, the
minimum of which is 1 day and the maximum of which is
life." Before the enactment of the legislative
sentencing guidelines, the " 1 day to life"
sentence was construed as an alternate or optional sentence
for sexually delinquent persons. See People v Kelly,
186 Mich.App. 524; 465 N.W.2d 569');">465 N.W.2d 569 (1990). With the 1998
enactment of the [328 Mich.App. 596] legislative sentencing
guidelines, indecent exposure by a sexually delinquent person
was classified as a Class A felony, subject to a range of
sentences dependent on an offender's variable scores. MCL
777.16q. The Supreme Court has directed us to consider what
effect, if any, the adoption of the guidelines " had on
a trial court's options in sentencing a defendant
convicted of indecent exposure by a sexually delinquent
person." People v Arnold, 502 Mich. 438, 483;
918 N.W.2d 164 (2018) (Arnold III ).
conclude that the sentencing guidelines provide another
option or alternative, in addition to the sexual-delinquency
scheme, when sentencing an individual convicted of indecent
exposure. As the trial court was not aware of its range of
sentencing options, or that the legislative sentencing
guidelines would be rendered advisory by People v
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), we
vacate defendant's sentence and remand to the trial court
for further sentencing proceedings.
convicted defendant of indecent exposure by a sexually
delinquent person in violation of MCL
750.335a(2)(c) for fondling himself at a public
library in front of an employee. Defendant was characterized
as a sexually delinquent person because he had committed such
acts before and therefore was a " person whose sexual
behavior is characterized by repetitive or compulsive acts
which indicate a disregard of consequences or the recognized
rights of others . . . ." MCL 750.10a. [328
Mich.App. 597] Indecent exposure by a sexually delinquent
person is a Class A felony under MCL 777.16q, with a
statutory maximum of life. Defendant's offense and prior
record variable scores placed him in cell F-III of the Class
A grid, MCL 777.62, and with consideration of defendant's
fourth-offense habitual-offender status, MCL 777.21(3)(c),
defendant's minimum guidelines range was calculated at
135 to 450 months. Arnold III, 502 Mich. at 449-450.
The trial court sentenced defendant within the guidelines to
25 to 70 years' imprisonment. People v Arnold,
unpublished opinion of the Court of Appeals, issued April 12,
2016 (Docket No. 325407), Id. at *1 (Arnold
Arnold I, defendant challenged his sentence,
asserting that the trial court was required by MCL
750.335a(2)(c) to sentence him to " 1 day to life"
. Arnold I, Id. at *9. We concluded that a court
sentencing a defendant convicted under MCL 750.335a(2)(c)
must still " abide by the sentencing guidelines" as
directed by People v Buehler (On Remand), 271
Mich.App. 653, 658-659; 723 N.W.2d 578 (2006), rev'd in
part on other grounds 477 Mich. 18; 727 N.W.2d 127');">727 N.W.2d 127 (2007).
Arnold I, Id. at *9. However, we remanded for
further sentencing proceedings as Lockridge, 498
Mich. 358; 870 N.W.2d 502, had since rendered the sentencing
guidelines advisory. Arnold I, Id. at *11.
Defendant sought reconsideration, again urging that a
sentence of " 1 day to life" was required. We
granted the motion because in the interim this Court issued a
[328 Mich.App. 598] published opinion controlling our
resolution of this issue— People v Campbell,
316 Mich.App. 279; 894 N.W.2d 72 (2016). Campbell,
316 Mich.App. at 299-300, held that although the legislative
sentencing guidelines were now only advisory, " the
sentence provided under MCL 750.335a(2)(c) is stated in
mandatory terms. Consequently, after the decision in
Lockridge, trial courts must sentence a defendant
convicted of indecent exposure as a sexually delinquent
person consistently with the requirements of MCL
" In People v Arnold, unpublished opinion of the
Court of Appeals, issued September 22, 2016 (Docket No.
325407), Id. at *3 (Arnold II), we concluded that we
were " bound by Campbell " to "
remand for imposition of the mandatory sentence set forth in
Supreme Court granted the prosecution's application for
leave to appeal this Court's decision in Arnold
II, " set aside Campbell ,"
and vacated our opinion based upon it. Arnold III,
502 Mich. at 483. The Supreme Court determined that a "
'1 day to life' sentence has never been required by
[MCL 750.335a(2)(c)]," contrary to
Campbell. Arnold III, 502 Mich. at 444 .
Rather, " 1 day to life" is a nonmodifiable
sentencing option for sexual delinquents. Id. at
450-451, citing Kelly, 186 Mich.App. at 531.
Court outlined the development of the sexual-delinquency
sentencing scheme. Arnold III, 502 Mich. at 447-465.
The Court described how the first sexual-delinquency acts
provided for the indefinite commitment of " sexual
psychopaths" until a court determined that they were no
longer " a menace to the public [328 Mich.App. 599]
safety." Id. at 457 (cleaned up). Over time,
" the Legislature began chipping away at" the broad
application of the sexual-delinquency sentencing scheme.
Id. at 464 . It is now limited in application to
five specific offenses: " (1) sodomy, MCL 750.158, (2)
indecent exposure, and (3) gross indecency between (a) two
males, MCL 750.338, (b) two females, MCL 750.338a, or (c)
between a male and a female, MCL 750.338b." Arnold
III, 502 Mich. at 464-465. The Court further noted that
prior to the enactment of 2005 PA 300, MCL 750.335a provided
that violation of the statute " 'may be
punishable by imprisonment . . . for an indeterminate term,
the minimum of which shall be 1 day and the maximum
of which shall be life . . . .'" The 2005
amendments substituted " is" for the emphasized
terms. Arnold III, 502 Mich. at 451-452.
Court concluded that the " 1 day to life" sentence
comprises an " alternate sentence" in accordance
with MCL 767.61a and that this alternative sentence is
optional, not mandatory. Id. at 465-469 . MCL
767.61a outlines the manner in which an individual charged
with an identified predicate offense may commensurately be
identified as 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. . . .[328 Mich.App. 600] 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 . [MCL 767.61a
this statute, before the enactment of the statutory
sentencing guidelines, " a judge faced with an
adjudicated sexual delinquent guilty of indecent exposure
could choose any legally available sentencing option that the
judge deemed appropriate," including a fine and jail
sentence of up to 1 year or alternatively " 1 day to
life" as provided in MCL 750.335a(2)(a)-(c). Arnold
III, 502 Mich. at 468-469. The Supreme Court "
conclude[d] that [Kelly, 186 Mich.App. 524; 465
N.W.2d 569,] correctly construed the '1 day to life'
alternate sentence as an option a sentencing judge
could draw upon, alongside and not to the exclusion of other
available options," based on " the text of
[MCL 750.335a(2)], the Legislature's usual
pattern in clearly identifying mandatory sentences, the
relation this scheme would have had to the overarching law of
sentencing at the time the scheme was adopted, and the
history of the scheme[.]" Arnold III, 502 Mich.
Having concluded that Kelly correctly construed
'1 day to life' as an option," the Supreme Court
then considered whether the option of " 1 day to
life" was modifiable— permitting a sentence within
the range identified— or nonmodifiable— requiring
the precise sentence of " 1 day to life."
Id. The Court found the " 1 day to life"
sentence nonmodifiable based on the Legislature's use of
the mandatory term " shall." The Court also found
the characterization of " 1 day to life" as an
" alternate sentence" in MCL 767.61a to "
indicate that [the sentence] ought to function in some
distinct way." Arnold III, 502 Mich. at 470.
The Court further relied on the historical purpose of the
" sexual-delinquency [328 Mich.App. 601] scheme, which
was clearly intended to be therapeutic and open-ended."
Id. at 471 . The Court emphasized, " The
purpose of the scheme was to create a different
sentencing option, one in ...