Opinion
Docket No. 73652.
Decided November 14, 1984. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Annette M. Gray, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Mardi Crawford), for defendant on appeal.
Before: GRIBBS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
After waiver proceedings in the Juvenile Division of Saginaw County Probate Court, defendant Jonathan Martin, Jr., was charged as an adult with felony-firearm, MCL 750.227b; MSA 28.424(2), and open murder, MCL 750.316; MSA 28.548; MCL 750.317; MSA 28.549. He pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to life imprisonment. He appeals as of right.
Defendant first claims that resentencing is mandated because the trial court led him to believe that the parole board would obtain jurisdiction to parole him in ten years even though he was sentenced to life in prison. We disagree.
In People v Waterman, 137 Mich. App. 429; 358 N.W.2d 602 (1984), our Court recently analyzed the effects of Proposal B, MCL 791.233b; MSA 28.2303(3), on the "lifer law", MCL 791.234; MSA 28.2304. It concluded that the Attorney General [OAG, 1979-1980, No 5,583, p 438 (October 16, 1979)] was in error in determining that the minimum term of ten years established by the "lifer law" was the "special parole" eliminated by Proposal B. "[T]he `lifer law', in effect, sets the minimum term on all life sentences other than first-degree murder and major controlled substance offenses at ten calendar years." 137 Mich. App. 437.
The Court held that Proposal B did not repeal the "lifer law". Proposal B eliminated only the allowances for good time, special good time, and special parole to reduce the ten-year minimum on nonmandatory life sentences. See Waterman, supra.
The defendant in Waterman received a nonmandatory life sentence for a first-degree criminal sexual conduct conviction and he was sentenced under a sentence bargain which was based on the idea that the "lifer law" would apply to the sentence making the defendant eligible for parole consideration after he served ten years in prison. The Court found that his bargain was not illusory because the defendant received that bargain.
The Waterman opinion conflicts with the dicta in People v Cohens, 111 Mich. App. 788; 314 N.W.2d 756 (1981), where the Court opined that parole eligibility for a prisoner sentenced to life for a crime enumerated in Proposal B is precluded by MCL 769.9; MSA 28.1081, which provides that no minimum term of years may be set when a life sentence is imposed. "[F]or purposes of Proposal B, the minimum term is, in effect, life imprisonment." 111 Mich. App. 796. We also disagree with the dicta in Cohens.
The Waterman Court noted this apparent conflict and expressly disavowed the dicta in Cohens.
Judge BRENNAN sat on the panel which decided People v Stevens, 128 Mich. App. 354; 340 N.W.2d 852 (1983), in a per curiam opinion. The Stevens panel cited the Cohens opinion for the proposition that Proposal B mandates that the defendant serve a full life sentence (nonmandatory life for first-degree criminal sexual conduct), without elegibility for parole in ten years as provided for by the "lifer law". 128 Mich. App. 357. Upon further examination of Cohens and in light of the detailed analysis provided in Waterman, Judge BRENNAN now believes that Waterman provides the correct interpretation of the law.
In the instant case, it appears that the trial court believed that defendant would be eligible for parole under the nonmandatory life sentence it imposed. According to Waterman, the plaintiff's bargain is not illusory. He received the benefit of his bargain and will be eligible for parole after he has served ten calendar years on his sentence. Therefore, resentencing is not mandated.
The defendant's remaining claim of error is also without merit.
Conviction and sentence affirmed. We retain no further jurisdiction.
I concur. Although I authored the opinion in People v Cohens, 111 Mich. App. 788; 314 N.W.2d 756 (1981), the discussion contained therein regarding the effect of Proposal B on life sentences was indeed dicta. Upon reconsideration of the issue in light of the analysis contained in People v Waterman, 137 Mich. App. 429; 358 N.W.2d 602 (1984), I confess that I have changed my mind. I now agree that Proposal B did not repeal the "lifer law", and thus parole consideration under MCL 791.234; MSA 28.2304 is not precluded for a prisoner sentenced to life for a crime enumerated in Proposal B. In doing so, I recall the words of Lord Westbury, who "rebuffed a barrister's reliance upon an earlier opinion of his Lordship [by replying] `I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion."' McGrath v Kristensen, 340 U.S. 162, 178; 71 S Ct 224; 95 L Ed 173 (1950).