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In Bensch, 328 Mich.App. at 13, this Court reaffirmed Peterson's conclusion that a "defendant may decline a sentence of probation and instead seek a sentence of incarceration."
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No. 341585
04-30-2019
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Robert BENSCH, Defendant-Appellee.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and David Porter, Assistant Attorney General, for the people. State Appellate Defender (by Michael Dagher-Margosian) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and David Porter, Assistant Attorney General, for the people.
State Appellate Defender (by Michael Dagher-Margosian) for defendant.
Before: Tukel, P.J., and Beckering and Shapiro, JJ.
Shapiro, J. The prosecution appeals by leave granted the circuit court’s ruling that defendant could decline probation and instead be sentenced to incarceration. The prosecution requests that we reject the rule first articulated in People v. Peterson , 62 Mich. App. 258, 265, 233 N.W.2d 250 (1975), that permits criminal defendants to refuse probation. In the absence of a compelling reason to do so, we decline to overrule a longstanding rule of law that has been repeatedly relied on by this Court. Accordingly, we reaffirm Peterson and affirm the circuit court.
People v. Bensch , unpublished order of the Court of Appeals, entered May 18, 2018 (Docket No. 341585).
We review de novo questions of law. People v. Steele , 283 Mich. App. 472, 482, 769 N.W.2d 256 (2009).
I. BACKGROUND
Defendant’s criminal convictions arose out of two separate drunk-driving incidents over the course of approximately five months, each of which resulted in its own district-court case. In both cases, defendant reached a plea agreement whereby he pleaded guilty to operating while intoxicated, second offense, MCL 257.625(1). Defendant was sentenced for the offenses on the same day. The sentences imposed run concurrently. In one of the cases, the district court sentenced defendant to one year in the county jail. In the other case, the district court sentenced defendant to two years of probation with numerous conditions. Immediately after the district court ruled, defense counsel objected to the probationary sentence, arguing that "if Mr. Bensch doesn’t wan[t] [to] be on probation ..., I don’t think the Court can put him ... there." The district court denied the objection.
In Michigan, "concurrent sentencing is the norm. A consecutive sentence may be imposed only if specifically authorized by statute." People v. Brown , 220 Mich. App. 680, 682, 560 N.W.2d 80 (1996) (citation omitted).
Defendant was to be released, after serving six months, into a six-month inpatient treatment program.
Defendant appealed by leave granted in the circuit court, arguing that he could reject probation in favor of incarceration under Peterson , 62 Mich. App. at 265, 233 N.W.2d 250. Defendant contended that the district court erred by forcing him to accept a probationary sentence in the second case, thereby disregarding Peterson , which was controlling under the doctrine of stare decisis. The prosecutor, on the other hand, acknowledged that Peterson was binding on lower courts but attempted to factually distinguish it. The prosecutor also offered several policy arguments for why defendants should not be permitted to reject probation. After considering the issue, the circuit court held that the district court had erred by barring defendant from "waiv[ing] his privileges to probation ...." Thus, the circuit court reversed and remanded for resentencing.
II. DISCUSSION
If a court determines that a convicted defendant "is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer." MCL 771.1(1). The Legislature has long described a trial court’s decision to grant probation as "a matter of grace." See People v. Sattler , 20 Mich. App. 665, 669, 174 N.W.2d 605 (1969).
That statutory section was identical in all relevant respects at the time Peterson was decided. MCL 771.1, as amended by 1961 PA 185.
In Peterson , the defendant challenged the probation condition requiring her to submit to warrantless searches, i.e., searches that but for her probationary status would have been unconstitutional. Peterson , 62 Mich. App. at 265, 233 N.W.2d 250. This Court acknowledged that the defendant chose to accept the terms of probation: "Probation is a matter of grace and rejectable, we think, at the option of the probationer." Id . The Court nevertheless struck down the condition, determining that despite the ability to reject probation, "the waiver of protection against unreasonable searches and seizures is so repugnant to the whole spirit of the Bill of Rights as to make it alien to the essence of our form of government." Id . at 266, 233 N.W.2d 250. The Court concluded that a "blanket search and seizure" provision amounts to a bill of attainder for the period of probation. Id . at 265, 233 N.W.2d 250.
Judge DANHOF dissented from this holding. His opinion, which was later adopted by this Court, argued that by accepting a sentence of probation carrying such a condition, the defendant voluntarily waived her Fourth Amendment rights. Id . at 270-272, 233 N.W.2d 250 ( DANHOF , P.J., concurring in part and dissenting in part). In defining this approach, Judge DANHOF agreed with the majority that "probation is ‘rejectable’; that is, optional and essentially voluntary." Id . at 271, 233 N.W.2d 250. He explained, "A probationer or parolee has given his consent in return for more lenient treatment." Id . Thus, while the Peterson majority and dissent disagreed on whether a defendant could waive the constitutional right to be free from unreasonable searches, they agreed that a defendant could decline probation.
If Peterson were the end of the story, we might be willing to address the question as essentially a matter of first impression. However, the rule that defendants may reject probation has been accepted and relied on in subsequent cases in which a defendant agreed to probation but objected to a particular condition.
We note that we are not bound by any rules of law announced in Peterson because that case was decided before November 1, 1990. See MCR 7.215(J)(1). However, while we are not "strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990," those opinions are nonetheless "considered to be precedent and entitled to significantly greater deference than are unpublished cases." Woodring v. Phoenix Ins. Co. , 325 Mich. App. 108, 114-115, 923 N.W.2d 607 (2018) (emphasis omitted). Further, "[a] published opinion of the Court of Appeals has precedential effect under the rule of stare decisis." MCR 7.215(C)(2).
The dissent argues that a defendant should not be permitted to decline probation, a rule it unilaterally characterizes as the "probation veto doctrine." While a memorable turn of phrase, this characterization is incomplete because it suggests that a defendant’s "veto" of probation leaves him or her unpunished. To the contrary, the very rare defendant who elects not to accept probation will be incarcerated. Similarly, we reject as hyperbole the prosecution’s claim that the Peterson rule allows a defendant to "dictate the terms of his own punishment." The rule does not allow a defendant to refuse a sentence of incarceration and select probation or to choose his or her minimum and maximum terms.
Not long after Peterson , the issue of warrantless probation searches arose again in People v. Richards , 76 Mich. App. 695, 699, 256 N.W.2d 793 (1977). Adopting Judge DANHOF ’s analysis, we found that there was no "constitutional barrier" to a warrantless-search condition of probation because the defendant had waived objection to this condition by accepting probation. Similarly, in People v. Hellenthal , 186 Mich. App. 484, 486, 465 N.W.2d 329 (1990), we rejected a Fourth Amendment challenge to a warrantless-search probation condition:
Hellenthal is not binding on us because it was decided in August 1990. MCR 7.215(J)(1).
[A] waiver of one’s constitutional protections against unreasonable searches and seizures may properly be made a condition of a probation order where the waiver is reasonably tailored to a defendant’s rehabilitation. As Judge DANHOF recognized in his dissent in Peterson , "[a] probationer or parolee has given his consent in return for more lenient treatment." [Citations omitted.]
In other words, we again reasoned that the warrantless-search condition of probation was constitutional because the defendant—by accepting probation—agreed to waive the constitutional right to be free from unreasonable searches and seizures. Waiver is an intentional relinquishment of a known right. People v. Kammeraad , 307 Mich. App. 98, 117, 858 N.W.2d 490 (2014). Thus, the underlying premise to Hellenthal is that a defendant consents to probation and can choose to reject it.
We note that the United States Supreme Court has since declined to rule on whether a probationer’s consent to warrantless searches is dispositive of Fourth Amendment issues. United States v. Knights , 534 U.S. 112, 118, 122 S. Ct. 587, 151 L.Ed.2d 497 (2001).
We again employed this analysis in People v. Oswald , 208 Mich. App. 444, 446, 528 N.W.2d 782 (1995), in which the defendant argued that a fine imposed by the trial court as a condition of probation was unauthorized. We held that the fine was authorized, but we also reasoned that
had defendant found the term of probation to be overly onerous, he could have declined the grant of probation,
notified the court that he would not abide by the terms of probation, and submitted himself for sentencing directly under the retail fraud statute, with its limitation on the amount of fine that may be imposed. [ Id . ]
Unpublished decisions of this Court have also relied on the fact that a defendant agrees to probation in resolving challenges to orders of probation. These decisions are not binding precedent, MCR 7.215(C)(1), but it is clear that the rule that a defendant can elect to reject probation has been used by this Court (and others ) to dispose of arguments made by defendants challenging the terms of their probation. Under these circumstances, we decline to simply abandon that rule without a compelling reason to do so.
People v. Loughner , unpublished per curiam opinion of the Court of Appeals, issued May 20, 1997 (Docket No. 190286), 1997 WL 33347793 ; People v. Jan , unpublished memorandum opinion of the Court of Appeals, issued January 13, 1998 (Docket No. 196492), 1998 WL 1997699.
See Brennan v. Dawson , opinion of the United States District Court for the Eastern District of Michigan, issued September 7, 2017 (Case No. 16-10119), 2017 WL 3913019.
The dissent notes the published decisions relying on Peterson but dismisses them because they "contain no discussion of the source of the doctrine" other than two cases that relied on Judge Danhof ’s partial dissent, which, according to the dissent, was "deficient." Setting aside the strength of Peterson’s legal analysis, the dissent ignores that this Court has relied on the case to resolve challenges to conditions of probation by reasoning that the defendant chose probation and therefore cannot complain of its conditions. Notably, the dissent fails to address the viability of these decisions if we eliminate the rationale on which they rest. Further, we cannot simply reject the Peterson rationale when a defendant relies on it and accept it when the prosecution relies on it.
"[U]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed." City of Coldwater v. Consumers Energy Co. , 500 Mich. 158, 172; 895 N.W.2d 154 (2017) (quotation marks and citation omitted). "The application of stare decisis is generally the preferred course, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." People v. Tanner , 496 Mich. 199, 250; 853 N.W.2d 653 (2014) (quotation marks and citation omitted). Factors to consider in determining whether to overrule a decision include "whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision." Id . at 250-251, 853 N.W.2d 653 (quotation marks and citation omitted).
The prosecution does not identify any difficulties that have occurred as a result of defendants being able to refuse probation. Indeed, as a practical matter, we think it is safe to say that the overwhelming majority of criminal defendants gladly welcome probation over incarceration and that the issue rarely arises. Further, it is questionable whether a trial court can find that a defendant who does not want to participate in probation "is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law ...." MCL 771.1(1). Nevertheless, the prosecution argues that Peterson "is no longer good law" because the three possible rationales for that decision have been repudiated. We disagree.
The prosecution first argues that the "probation-as-contract theory," in which the court and the probationer are thought to have arrived at an arm’s-length bargain, has been rejected. Yet Peterson does not describe probation in contractual terms, and therefore this purported development in the law does not provide a basis to depart from that decision. Second, the prosecution argues that Peterson and its progeny rest on an outdated view of probation as being an "act of grace" and that we should reject that view. However, this argument runs afoul of the plain language of MCL 771.4, which provides that "[i]t is the intent of the legislature that the granting of probation is a matter of grace ...." Third, the prosecution argues that probation is no longer considered a rehabilitative alternative to incarceration and is instead considered solely as a criminal punishment with the corresponding goals of retribution and deterrence. We disagree with this premise, but even accepting it as true, we fail to see how this warrants a change in longstanding law. If a defendant declines probation, the goals of the criminal justice system can still be accomplished through incarceration.
The prosecution also argues that the United States Supreme Court rejected the notion that probation is an act of grace in Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973). We disagree. Gagnon did not reject the view that probation is a matter of grace; it only rejected the argument that because probation is an act of grace, the defendant is not entitled to any due process when the prosecution seeks probation revocation. Id. at 782 n. 4, 93 S.Ct. 1756.
The prosecution also contends that caselaw from other jurisdictions supports overruling Peterson . However, our review of that caselaw shows that states take a variety of approaches toward this issue. Some states allow a defendant to refuse probation. See, e.g., People v. Olguin , 45 Cal. 4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1 (2008) ; State v. Divan , 724 N.W.2d 865, 872; 2006 S.D. 105 (2006) ; State v. McCready , 234 Wis. 2d 110, 114, 2000 WI App. 68, 608 N.W.2d 762 (2000). Other states do not. See, e.g., State v. Pawling , 9 Neb. App. 824, 831, 621 N.W.2d 821 (2000) ; State v. Walton , 137 Ohio App. 3d 450, 457, 738 N.E.2d 1258 (2000) ; State v. Estep , 854 S.W.2d 124, 127 (Tenn. Crim. App., 1992). At least one jurisdiction expressly provides by statute that "[a] person may not be put on probation without his consent," D.C. Code 16-710(a), while other jurisdictions have statutes that expressly provide that a defendant does not have the right to reject probation, Ala. Code § 15-22-50 ; Or. Rev. Stat. 137.010(5). Given that overview, we do not agree with the prosecution that Peterson has become an outdated nullity. To the contrary, numerous states agree that defendants should have the choice to participate in probation. For those reasons, we are not persuaded to overrule Peterson on the basis of out-of-state authority.
MCL 771.1, the statute allowing a trial court to impose probation, has remained essentially the same since Peterson was decided. However, the prosecution contends that there are two probation programs in the Code of Criminal Procedure (the Code), MCL 760.1 et seq ., that explicitly require a defendant’s permission. From this, the prosecution argues that when the Legislature wants to allow a defendant to refuse a sanction, it knows how to explicitly do so.
The first probation program that the prosecution relies on took effect in 2013 as the "probation swift and sure sanctions act," Chapter XIA of the Code. 2012 PA 616. In 2017, the Legislature amended that chapter to include a subparagraph, which, according to the prosecution, provides that a defendant may decline to participate in this program. See MCL 771A.4(4)(a), as added by 2017 PA 17. The prosecution is mistaken. The statute contains no specific provision that allows a defendant to decline the program. Rather, MCL 771A.4(4)(a) merely provides that if the jurisdiction in which the defendant has been convicted does not have a swift-and-sure probation program and the court wishes to place the defendant in such a program operating in a different county, then the defendant must agree to the change of jurisdiction to another county.
The other probation program to which the prosecution refers us is the "special alternative incarceration program," MCL 771.3b, which was added to the probation chapter (Chapter XI) of the Code in 1988. 1988 PA 286. Relevant to this appeal, that statutory section provides that "[a] person shall not be placed in a program of special alternative incarceration unless the person consents to the placement." MCL 771.3b(6). This provision is also inapposite. Special alternative incarceration can only be imposed as a condition of probation, and the statute permits a defendant to object to that condition even if he otherwise "accepts" probation. See MCL 771.3b(1) (providing that a special alternative incarceration program may be imposed "[i]n addition to any other terms or conditions of probation provided for under this chapter"). We do not see a conflict between the general rule that probation may be declined and a rule that even when a defendant "accepts" probation, he or she may still be granted a right by statute to decline a specific provision of that probation.
In sum, we conclude that the arguments made by the prosecution are not compelling reasons to depart from the longstanding interpretation of MCL 771.1 announced in Peterson . We therefore reaffirm the rule that a defendant may decline a sentence of probation and instead seek a sentence of incarceration.
Affirmed and remanded to the trial court for resentencing consistent with this opinion. We do not retain jurisdiction.
Beckering, J., concurred with Shapiro, J.
Tukel, P.J. (dissenting). Is there any circumstance under which a criminal defendant may veto a sentence that the trial judge intends to impose and demand a sentence more to the defendant’s liking? Reading the Michigan Constitution and statutes, one would certainly think not. "[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature." People v. Hegwood , 465 Mich. 432, 436, 636 N.W.2d 127 (2001), citing Const. 1963, art. 4, § 45. "The authority to impose sentences and to administer the sentencing statutes enacted by the Legislature lies with the judiciary." Id . at 436-437, 636 N.W.2d 127, citing MCL 769.1(1). The majority, however, reaffirms the rule first enunciated in People v. Peterson , 62 Mich. App. 258, 265, 233 N.W.2d 250 (1975), that "[p]robation is a matter of grace and rejectable, we think, at the option of the probationer." Because I believe that Peterson was incorrectly decided and that the justifications given by the majority for adhering to it are inadequate, I respectfully dissent.
I. AUTHORITY TO IMPOSE A SENTENCE OF PROBATION
A. THIS COURT’S DECISION IN PETERSON
The precise question presented here is whether a defendant who the trial court determines should be sentenced to probation can "veto" the imposition of probation and instead opt for a custodial sentence.
There does not seem to be a name for the doctrine at issue. For ease of reference, this dissent refers to the proposition that a criminal defendant has the authority to reject a probationary sentence that the trial court intends to impose as the "probation-veto doctrine" or "veto doctrine." The majority’s claim that this terminology is somehow "incomplete" because it supposedly suggests that a defendant can opt out of all punishment is simply not correct, as this dissent’s framing of the issue makes clear. Instead, this doctrine means what it says: a defendant can unilaterally veto or decline probation . Neither this phrase nor this opinion suggests that such a defendant could decline other forms of punishment, and in fact the entire point of the case is that it permits a defendant to choose another form of punishment in lieu of probation.
While a defendant’s choice to elect imprisonment over probation might seem counterintuitive, the interplay of Michigan law and the facts of a particular case could make it quite rational from a defendant’s perspective. In Michigan, as the majority notes, "concurrent sentencing is the norm," and "[a] consecutive sentence may be imposed only if specifically authorized by statute." People v. Brown , 220 Mich. App. 680, 682, 560 N.W.2d 80 (1996). Thus, for example, if a defendant was being sentenced on two convictions, and if the maximum possible imprisonment for each was one year, such a defendant may opt for two concurrent terms of imprisonment, assuming no concurrent-sentencing exception existed, instead of one term of imprisonment and one lengthier term of probation. In the concurrent-sentencing scenario, the defendant would be "done" with his or her punishment at the end of one year at the latest; in the other scenario, the defendant may have served a year in jail but still might be subject to perceived onerous terms of probation for many years afterward. Thus, the punishment in the latter scenario would be more severe to that defendant because the normal benefit of probation, avoiding jail time, would not be realized. Indeed, the statute at issue here authorizes consecutive sentencing for a second-offense drunk-driving conviction, as in this case, and in fact requires that at least some of the imposed sentence be served consecutively. See MCL 257.625(9)(b)(i ) (authorizing "[i]mprisonment for not less than 5 days or more than 1 year," and "[n]ot less than 48 hours of the term of imprisonment imposed ... must be served consecutively").
Such was the holding in Peterson , but the underlying rationale for the decision is at best unclear; the Court provided no analysis beyond the quoted sentence, and that sentence appeared to be a mere supposition ("we think"), unsupported by any authority. Despite this lack of authority, the majority states that "[t]he prosecution does not identify any difficulties that have occurred as a result of defendants being able to refuse probation. Indeed, as a practical matter, we think it is safe to say that the overwhelming majority of criminal defendants gladly welcome probation over incarceration and that the issue rarely arises." While it is in fact likely that most defendants do prefer probation to a sentence of incarceration, whether the prosecution has identified problems that have arisen as a result of the veto doctrine is not relevant to whether it is a proper interpretation of the law. The correct resolution turns on legislative intent, which is itself based on statutory language that expresses the Legislature’s policy determinations, and we do not consider or weigh those policy pronouncements. See Robinson v. Detroit , 462 Mich. 439, 474, 613 N.W.2d 307 (2000) ( CORRIGAN , J., concurring) ("[A] Court exceeds the limit of its constitutional authority when it substitutes its policy choice for that of the Legislature[.]").
The partial dissent in Peterson also said: "As recognized by the majority, probation is ‘rejectable’; that is, optional and essentially voluntary. ... A probationer or parolee has given his consent in return for more lenient treatment." Peterson , 62 Mich. App. at 271, 233 N.W.2d 250 ( Danhof , P.J., concurring in part and dissenting in part). Judge Danhof provided no further authority for that view than did the Peterson majority, instead simply assuming that a defendant had given consent and that by withholding consent, a defendant could veto the term of probation.
In addition, the other cases from this Court stating that a defendant may veto probation, which the majority cites, also contain no discussion of the source of the doctrine, other than that two of them cited Judge DANHOF ’s partial dissent in Peterson , which itself was deficient for reasons already stated. See People v. Oswald , 208 Mich. App. 444, 446, 528 N.W.2d 782 (1995) (stating in dictum and without citing any authority, "Indeed, had defendant found the term of probation to be overly onerous, he could have declined the grant of probation, notified the court that he would not abide by the terms of probation, and submitted himself for sentencing directly under the [statute of conviction] ..."); People v. Hellenthal , 186 Mich. App. 484, 486, 465 N.W.2d 329 (1990) (quoting the partial dissent in Peterson ); People v. Richards , 76 Mich. App. 695, 699, 256 N.W.2d 793 (1977) (adopting without discussion Judge DANHOF ’s view in Peterson ).
In note 12 of its opinion, the majority states that "the dissent ignores that this Court has relied on the case to resolve challenges to conditions of probation by reasoning that the defendant chose probation and therefore cannot complain of its conditions." However, the majority’s point is circular—reliance on a defendant’s choice of probation is only material if a defendant has a right to such a choice. That is the question presented here, so its correctness cannot simply be assumed.
B. STATUTORY AUTHORITY REGARDING PROBATION
However, the availability of probation as a sentencing option for a particular offense is purely a legislative determination. As our Supreme Court has noted, "[T]he source of the trial court’s probation authority [is] the Legislature." People v. McLeod , 407 Mich. 632, 660, 288 N.W.2d 909 (1980), (opinion by RYAN , J.), citing People v. Davis , 392 Mich. 221, 226, 220 N.W.2d 452 (1974) ; see also People v. Marks , 340 Mich. 495, 498, 65 N.W.2d 698 (1954) (stating that "[t]he authority of the court" to impose a probationary sentence "must be found in the statute"). And it has long been clear in Michigan that the decision to impose a sentence of probation "rests in the sound discretion of the trial court." McLeod , 407 Mich. at 660, 288 N.W.2d 909 (opinion by RYAN , J.); see also Marks , 340 Mich. at 499, 65 N.W.2d 698. It is, of course, a familiar tenet of statutory construction that we are to effectuate the intent of the Legislature as set forth in the statutory language used. See, e.g., People v. Pinkney , 501 Mich. 259, 268, 912 N.W.2d 535 (2018). "In doing so, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute’s language is unambiguous, ... the statute must be enforced as written. No further judicial construction is required or permitted." Id. (quotation marks and citations omitted).
1. MCL 771.1 —VESTING POWER WITH "THE COURT"
The relevant statutory language is provided by MCL 771.1(1) and states:
In all prosecutions for felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses, if the defendant has been found guilty upon verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.
It is thus readily apparent that by its plain terms, MCL 771.1(1) places the decision of whether to impose a term of probation on the sentencing court, without reserving to a defendant any option of vetoing such a sentence. That section provides that, except in regard to certain offenses that the Legislature has determined are ineligible for probation, and so long as other conditions are met, "the court may place the defendant on probation[.]" (Emphasis added.)
As MCL 771.1(1) is the basis of a court’s authority to impose probation, it is noteworthy that the statute contains no language providing that a defendant must consent to, and therefore may veto, such a sentence. Nor do any of the other statutory provisions dealing with the authority to impose a term of probation contain such consent or veto provisions. See, e.g., MCL 771.2(5) ("The court shall, by order to be entered in the case as the court directs by general rule or in each case, fix and determine the period and conditions of probation."); MCL 771.2a(1) to (3) (providing that "the court" may impose a term of probation of up to 5 years for various offenses); MCL 771.3(2) (providing for terms that "the court may require the probationer to do" as conditions of probation). That is, of course, in accordance with the normal and expected functioning of the criminal justice system, under which "[a] judge of a court having jurisdiction may pronounce judgment against and pass sentence upon a person convicted of an offense in that court. The sentence shall not exceed the sentence prescribed by law." MCL 769.1(1). By ratifying the principle that a defendant may overrule a sentencing court’s determination of what "the public good" requires in regard to the imposition of probation, MCL 771.1(1), the majority transfers one aspect of sentencing from courts, where the Legislature has reposed sentencing authority, to criminal defendants. As an abstract principle, it is highly dubious that the Legislature intended to cede the determination of what constitutes "the public good" for sentencing purposes to the defendant who was convicted of a particular offense. That premise is confirmed by the express language of the statute, which makes clear that the Legislature did not do so, given that it enacted language providing that if "the court" makes a particular determination about the public good, then "the court" may impose a term of probation.
2. MCL 771.4 —"MATTER OF GRACE"
The provision on which the majority expressly relies is MCL 771.4. That section provides, in relevant part:
It is the intent of the legislature that the granting of probation is a matter of grace conferring no vested right to
its continuance. If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation.
Peterson did not cite MCL 771.4 but referred to probation being "a matter of grace," so it may well have had the section in mind. In any event, reliance on MCL 771.4 to support the validity of the probation-veto doctrine is misplaced.
To begin with, the majority quotes only a portion of the statute, citing it for the proposition that "probation is a matter of grace." However, a proper reading of the statute shows that it is MCL 771.1 through MCL 771.3 that commit to "the court" the decision whether to sentence a defendant to probation. The statute then goes on to provide the circumstances under which a court that previously has sentenced a defendant to a term of probation may cancel or revoke that probation. MCL 771.4 addresses only that decision to cancel probation—not to grant it in the first instance—and thus has no applicability regarding whether a defendant may veto a sentencing court’s initial decision to impose a term of probation. Rather, MCL 771.4 provides that "the granting of probation is a matter of grace conferring no vested right to its continuance," such that, if the court determines either that the probationer is likely to again engage in criminal conduct "or that the public good requires revocation of probation, the court may revoke probation." Thus, although MCL 771.4 does not address the initial decision to impose probation, in the situation to which it does apply—revocation—the "matter of grace" language actually means the opposite of what the majority says it means. In its proper context, the "matter of grace" language means that a defendant has no right to demand whatever is at issue, which in the case of MCL 771.4 is the continuation of probation, and thus the decision of whether to terminate probation is committed solely to the discretion of the trial court.
The structure of the statute supports this reading as well. The first three sections (MCL 771.1 through MCL 771.3 ) define the circumstances and procedure under which a court may impose probation, the first step in a sentencing determination leading to probation. MCL 771.4, the fourth section, then defines the circumstances under which a court may undo its previous actions. Thus, the structure of these sections corresponds chronologically to how a probationary sentence works in practice.
But even if the majority is correct that the initial decision of whether to impose probation is controlled by the "matter of grace" language of MCL 771.4, it would simply mean that defendant has no involvement in the decision of whether to impose probation. That is because (1) a defendant has no right to such a sentence and therefore cannot expect it, demand it, or approve or disapprove it; and (2) the decision to impose a sentence of probation resides solely with the trial court. In other words, the "matter of grace" language merely is another way of saying that the granting of probation is a purely discretionary decision by the trial court, albeit in more archaic language owing to its 1947 roots.
The phrase "a matter of grace" was first used in a probation statute in 1947 PA 246, Chapter XI, § 4, which provided, in relevant part:
It is the intent of the legislature that the granting of probation to one convicted shall be a matter of grace conferring no vested right to its continuance , if, during the period of probation it shall appear to the satisfaction of the sentencing court that the probationer is likely again to engage in an offensive or criminal course of conduct, or that the public good requires revocation or termination of
probation previously granted. All probation orders, therefore, shall be revocable or terminable in any manner which the court which imposed probation shall deem applicable, either for any violation, or attempted violation of any condition of probation, or for any other type of antisocial conduct or action on the part of the probationer .... [Emphasis added.]
As is the case with the current version of the statute, the "matter of grace" language related not to the initial decision to impose probation but rather to its revocation. But even beyond that, in 1947, when the "matter of grace" language was adopted, the term was understood generally to mean simply the opposite of being a matter of right. As noted, our job in construing a statute is to effectuate the intent of the Legislature as set forth in the statutory language used. In doing so, we must use the understanding of a term as it was known by the Legislature that enacted the statute. See People v. Bolling , 140 Mich. App. 606, 611-612, 364 N.W.2d 759 (1985) (construing the word "timber" as it was understood by the Legislature in 1867, when the statute at issue was enacted). Moreover, even though the "matter of grace" language has been reenacted in subsequent legislation, it is nevertheless the language of the 1947 act that is controlling because "[t]he provisions of any law or statute which is re-enacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments." MCL 8.3u.
In 1947, when the "matter of grace" language was first adopted, our courts uniformly interpreted the phrase to mean that something was not a matter of right but rather of judicial discretion. See, e.g., Worsham v. McCall , 259 Mich. 630, 632, 244 N.W. 183 (1932) ("The remedy of specific performance is a matter of grace rather than of right."); Harmon v. Muirhead , 247 Mich. 614, 615, 226 N.W. 713 (1929) ("Specific performance is a matter of grace, not of right."); Stuart v. Gonyea , 246 Mich. 109, 112, 224 N.W. 386 (1929) ("It is only a matter of grace and not a matter of right."); see also Black’s Law Dictionary (3d ed.) (defining "grace" as "commonly used in contradistinction to ‘right’ "). And that point accords exactly with what our Supreme Court has long held—as the majority notes—that the decision to impose a sentence of probation "rests in the sound discretion of the trial court." McLeod , 407 Mich. at 660, 288 N.W.2d 909 (opinion by RYAN , J.); see also Marks , 340 Mich. at 499, 65 N.W.2d 698. In other words, as used in the probation statute, the term "a matter of grace" in 1947 meant the same thing that "sound discretion of the trial court" means today.
Thus, the majority’s position that a trial court’s "discretion" nevertheless is dependent on a defendant’s approval and therefore is subject to a defendant’s veto is untenable; none of the cases from our Supreme Court so much as hints that a trial court’s discretionary authority over the decision to impose probation is so limited. Indeed, if that were the case, the use of the term "discretion" to describe the trial court’s authority would be self-contradictory, because such conditional discretion would not constitute discretion at all. See Sparks v. Sparks , 440 Mich. 141, 149 n. 7, 485 N.W.2d 893 (1992), quoting Langnes v. Green , 282 U.S. 531, 541, 51 S. Ct. 243, 75 L.Ed. 520 (1931) (" ‘The term "discretion" denotes the absence of a hard and fast rule. When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result .’ ") (ellipsis omitted; emphasis added). The veto doctrine necessarily impinges on a judge’s range of options and, by affording to a defendant a say in the decision to impose probation, mandates that the ultimate decision involves considerations other than those of the judge, as well as approval by someone other than the judge. Accordingly, the veto doctrine transforms a judge’s "discretion" into something that falls well short of "the reason and conscience of the judge" leading "to a just result." Langnes , 282 U.S. at 541, 51 S.Ct. 243. The veto doctrine therefore contravenes the long-settled principle that the decision whether to impose probation is committed to the trial court, whether one uses the modern term "discretion" or the more old-fashioned phrase "matter of grace" to describe that authority, because in this context the two terms mean the same thing.
On appeal, the prosecution argues three other reasons justifying the overruling of Peterson : (1) probation as contract theory is no longer viable, (2) probation as "a matter of grace" is based on an outmoded view, and (3) probation no longer is viewed as a tool of rehabilitation. However, in light of the authority to impose probation being purely legislative, any analysis of the validity of the probation-veto doctrine properly begins and ends with statutory construction; thus, a court properly ought not consider these policy concerns the prosecution raises. Moreover, in determining whether to adhere to the rule of Peterson , it makes no sense to rely on rationales not provided by Peterson itself.
II. STARE DECISIS
The majority correctly notes that we are not required to follow Peterson because it was issued before November 1, 1990. MCR 7.215(J)(1). The majority, citing Woodring v. Phoenix Ins. Co. , 325 Mich. App. 108, 114–115, 923 N.W.2d 607 (2018), notes that such opinions are "nonetheless ‘considered to be precedent and entitled to significantly greater deference than are unpublished cases.’ " The majority also cites MCR 7.215(C)(2) in pointing out that " ‘[a] published opinion of the Court of Appeals has precedential effect under the rule of stare decisis.’ "
Stare decisis is generally " ‘the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ " Pohutski v. City of Allen Park , 465 Mich. 675, 693; 641 N.W.2d 219 (2002) (quotation marks and citation omitted). Before overruling a prior decision, a court must be convinced " ‘not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.’ " Id . (citation omitted).
At the same time, "stare decisis is a principle of policy, not an inexorable command." Id . at 694. As United States Supreme Court Justice Louis Brandeis put it, "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co. , 285 U.S. 393, 406, 52 S. Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting), majority opinion overruled in part on other grounds by Helvering v. Mountain Producers Corp. , 303 U.S. 376, 378; 58 S. Ct. 623, 82 L.Ed. 907 (1938). Nevertheless, "stare decisis is not to be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes." Robinson , 462 Mich. at 463, 613 N.W.2d 307. In Robinson , our Supreme Court set forth four factors that courts must consider before overruling a prior decision: (1) whether the earlier case was wrongly decided, (2) whether the decision defies "practical workability," (3) whether reliance interests would work an undue hardship, and (4) whether changes in the law or facts no longer justify the questioned decision. Id . at 464, 613 N.W.2d 307.
In considering the reliance interest, courts consider "whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations." Id . at 466, 613 N.W.2d 307. However, our Supreme Court also has noted that
it is well to recall in discussing reliance, when dealing with an area of the law that is statutory ..., that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of
law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people’s representatives. Moreover, not only does such a compromising by a court of the citizen’s ability to rely on a statute have no constitutional warrant, it can gain no higher pedigree as later courts repeat the error. [ Id. at 467-468, 613 N.W.2d 307 ; accord Pohutski , 465 Mich. at 694-695, 641 N.W.2d 219.]
In the criminal-law context, reliance interests often will carry little weight in determining whether to overrule an incorrectly decided precedent. This is so because "to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event." Robinson , 462 Mich. at 467, 613 N.W.2d 307. However, "[t]he nature of a criminal act defies any argument that offenders attempt to conform their crimes—which by definition violate societal and statutory norms—to a legal test established by [previous judicial decisions]." People v. Gardner , 482 Mich. 41, 62, 753 N.W.2d 78 (2008). Moreover, to the extent such earlier judicial decisions "implicate reliance interests, such interests weigh in favor of overruling them. Michigan citizens and prosecutors should be able to read the clear words of the statutes and ‘expect that they will be carried out by all in society, including the courts.’ " Id. , quoting Robinson , 462 Mich. at 467, 613 N.W.2d 307 (ellipsis omitted).
In sum, "no person could conceivably have relied on [the veto doctrine as enunciated in Peterson ] to his or her detriment. That is, we cannot conceive that anyone has committed a [drunk-driving offense] on the basis that, under [ Peterson ], he or she could only be" sentenced to probation with his or her consent. People v. Ream , 481 Mich. 223, 240-241; 750 N.W.2d 536 (2008) (bracketed material added to correspond with the facts of this case).
In this case, it is clear that Peterson should be overruled. For the reasons already stated, the doctrine it enunciated is contrary to the clear statutory directive under which the Legislature has given the authority to the courts to impose a probationary sentence, and nowhere has it afforded a defendant the power to refuse such a sentence. Moreover, for the reasons stated by our Supreme Court in Gardner and Ream , there could not have been any reliance interest by defendant in committing his second drunk-driving offense, such that he would have had an expectation that he could reject probation; and even if defendant had had such a reliance interest, it is one that is illegitimate given his violation of the criminal law, and thus it should not be further endorsed by the judiciary.
For these reasons, I would hold that Peterson is incorrect to the extent that it permits a defendant to veto a sentencing court’s decision to impose a term of probation. I would vacate the decision of the circuit court and remand to the trial court for resentencing.