Opinion
Docket No. 116903.
Decided December 4, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David A. Hogg, Prosecuting Attorney, and Deborah K. Canja, Assistant Attorney General, for the people.
State Appellate Defender (by Sheila N. Robertson and Jack Van Coevering), for defendant on appeal.
Before: McDONALD, P.J., and MURPHY and GRIFFIN, JJ.
Pursuant to a plea agreement, defendant pled guilty to felonious assault, MCL 750.82; MSA 28.277, and was sentenced to thirty-two to forty-eight months imprisonment. Defendant now appeals as of right from his sentence claiming the sentencing court erred in applying the new sentencing guidelines when defendant's offense occurred before the new guidelines October 1, 1988, implementation date. We affirm.
By Administrative Order No. 1988-4, 430 Mich. ci (1988), issued June 7, 1988, our Supreme Court required all circuit courts to utilize the second edition of the sentencing guidelines, stating:
Administrative Order No. 1985-2, 420 Mich. lxii, and Administrative Order No. 1984-1, 418 Mich. lxxx, are rescinded as of October 1, 1988. The Sentencing Guidelines Advisory Committee is authorized to issue the second edition of the sentencing guidelines, to be effective October 1, 1988. Until further order of the Court, every judge of the circuit court and of the Recorder's Court for the City of Detroit must thereafter use the second edition of the sentencing guidelines when imposing a sentence for an offense that is included in the guidelines. [Emphasis added.]
Although the instant defendant committed the assault prior to October 1, 1988, he was not sentenced until November 14, 1988. Thus, pursuant to the plain language of the administrative order, the sentencing court utilized the new guidelines when sentencing defendant. We find no misconstruction of the order by the sentencing court.
Defendant next claims "retroactive" application of the new guidelines in the instant case implicates the prohibition against ex post facto laws found in the United States and Michigan Constitutions. US Const, art I, § 9; Const 1963, art 1, § 10. We disagree.
The Ex Post Facto Clause of the United States Constitution is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch of government, Marks v United States, 430 U.S. 188; 97 S Ct 990; 51 L Ed 2d 260 (1977). Although the principle upon which the clause is based has been found applicable to cases of judicial action through the due process clauses of the Fifth and Fourteenth Amendments, Marks, supra; Bouie v Columbia, 378 U.S. 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964), its application in Michigan has been limited to situations in which the judiciary either acts to "interpret" an existing criminal statute such that the interpretation leads to an unforeseeable judicial enlargement of the same, People v Dempster, 396 Mich. 700; 242 N.W.2d 381 (1976), or acts to abrogate or alter well-settled common law, People v Stevenson, 416 Mich. 383; 331 N.W.2d 143 (1982). Neither situation presents itself in the instant case as here defendant contests the application of an administrative order, not a statutory or common-law rule. Accord Wallace v Christensen, 802 F.2d 1539 (CA 9, 1986). The prohibition against enforcement of ex post facto laws is therefore not implicated in the instant case.
Moreover, even had application of the revised guidelines been improper, we would find the error harmless. The sentencing judge departed from the guidelines' recommended sentence, stating he would depart and impose the same sentence even if a lower guidelines range were applicable.
Affirmed.