Docket No. 116262.
Decided December 4, 1989.
Lannen Trusock (by Patrick J. Lannen), for defendant.
Before: GILLIS, P.J., and SULLIVAN and CAVANAGH, JJ.
Defendant Larry Fitzpatrick Davis pled guilty to second-degree murder, MCL 750.317; MSA 28.549, arising from an incident of October 12, 1984. The trial court sentenced defendant on November 21, 1988, to life imprisonment, using the revised Michigan Sentencing Guidelines, Second Edition. The revised guidelines recommended an increased minimum sentence range for the offense. On appeal as of right, defendant challenges the constitutionality of the trial court's retroactive application of the revised guidelines.
Initially, we note that defendant failed to raise this issue in the trial court. As a general rule, this Court will not review an issue raised for the first time on appeal. People v Calloway, 169 Mich. App. 810, 818; 427 N.W.2d 194 (1988). However, where a significant constitutional question is presented, as in this case, appellate review is appropriate. Id.
At issue is Administrative Order No. 1988-4, 430 Mich. ci (1988), in which the Michigan Supreme Court instituted use of the revised guidelines:
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 lxxx, are rescinded as of October 1, 1988.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.
Defendant first contends that the trial court misconstrued Administrative Order No. 1988-4 by applying the revised guidelines to an offense committed before October 1, 1988. We disagree. The plain language of the order requires use of the Second Edition in every sentencing proceeding after October 1, 1988. Further, the preceding administrative orders requiring use of the guidelines were rescinded as of that date. We find the Court's order clear and unambiguous. Because the same principles of statutory construction apply in determining the Supreme Court's intent in promulgating rules of procedure, Issa v Garlinghouse, 133 Mich. App. 579, 581; 349 N.W.2d 527 (1984), we find no room for further interpretation.
Defendant's primary contention, however, is that retroactive application of the revised sentencing guidelines violates the prohibition against ex post facto legislation. US Const, art I, § 10; Const 1963, art 1, § 10. We note that, while the Ex Post Facto Clause of the United States Constitution does not apply directly to the judiciary, it is applicable through the Fourteenth Amendment Due Process Clause. Bouie v Columbia, 378 U.S. 347, 353-354; 84 S Ct 1697; 12 L Ed 2d 894 (1964). Our Supreme Court has also acknowledged the applicability of the Ex Post Facto Clause to the judiciary. People v Stevenson, 416 Mich. 383, 395; 331 N.W.2d 143 (1982), citing People v Dempster, 396 Mich. 700, 714-718; 242 N.W.2d 381 (1976).
An ex post facto law is defined as:
"1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Calder [v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648 (1798)]. [ Stevenson, supra, p 396.]
The ex post facto prohibition serves a dual purpose: to prohibit state legislatures from enacting arbitrary or vindictive legislation and to provide fair notice such that individuals may rely on legislative enactments until explicitly changed. See Miller v Florida, 482 U.S. 423, 429-430; 107 S Ct 2446; 96 L Ed 2d 351 (1987), citing Calder, supra; Weaver v Graham, 450 U.S. 24, 28-29; 101 S Ct 960; 67 L Ed 2d 17 (1981).
The test for determining whether a criminal law is an ex post facto law involves two elements: first, the law "must be retrospective, that is, it must apply to events occurring before its enactment," and second, "it must disadvantage the offender affected by it." Weaver v Graham, supra, p 29; Miller v Florida, supra, p 430; Stevenson, supra, p 397. However, every retrospective law is not an ex post facto law. Calder, supra. The Ex Post Facto Clause does not restrict "legislative control of remedies and modes of procedures which do not affect matters of substance," Miller v Florida, supra, p 433, citing Dobbert v Florida, 432 U.S. 282, 293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), or "rights vested." Calder, supra.
In consideration of these principles, we do not find retroactive application of the revised sentencing guidelines offensive to the ex post facto law prohibition. First, the revised guidelines do not "increase the punishment" for defendant's crime. See Calder, supra. The guidelines remain nonbinding on the trial courts. Administrative Order No. 1988-4. They serve merely as a tool to assist the trial judge in the exercise of his sentencing discretion. People v Green, 152 Mich. App. 16, 18; 391 N.W.2d 507 (1986). The guidelines provide a "recommendation"; they do not, and cannot, limit the discretion afforded trial courts by the indeterminate sentencing act, MCL 769.8; MSA 28.1080. The guidelines themselves actually encourage departure so long as the court articulates reasons for departure. People v Ridley, 142 Mich. App. 129, 133-134; 369 N.W.2d 274 (1985). Even factors already considered in the guidelines may support a departure. Id. Finally, appellate review is of right even where a sentence falls within the recommended guideline range. People v Broden, 428 Mich. 343, 354, n 18; 408 N.W.2d 789 (1987).
In Miller v Florida, supra, a unanimous United States Supreme Court held that retroactive application of Florida's statutory guidelines violated the Ex Post Facto Clause. There, however, the Florida statute created a "presumptive sentence" which the statute "assumed to be appropriate for the composite score of the offender." Miller, supra, p 426. The Florida statute provided that "[d]epartures from the presumptive sentence should be avoided," absent "clear and convincing reasons." A sentence outside the guidelines required a written statement delineating clear and convincing reasons, excluding factors already considered in the guidelines. Only sentences falling outside the guidelines were subject to appellate review. Id. Thus, Miller is easily distinguishable from this case. We find that, here, the revised guidelines simply provide "flexible `guideposts' for use in the exercise of discretion." See Miller, supra, p 435.
Second, we do not find that the revised sentencing guidelines have altered "substantial personal rights" of defendant. It is well settled that, because the guidelines were intended to assist trial courts in assessing an appropriate sentence, they do not convey substantive rights. People v Hearn, 159 Mich. App. 275, 286; 406 N.W.2d 211 (1987). While we recognize the distinction between substance and procedure is sometimes elusive, see Miller, supra, p 433, in this case defendant can claim no right to a sentence within the old guidelines.
Further, defendant makes no claim of "vindictive" legislation. In Miller, supra, pp 433-434, the Supreme Court noted Florida's intent to increase "the quantum of punishment" for sexual offenders. The Sentencing Guidelines Advisory Committee's intent, however, in formulating the Second Edition was to make sentencing in Michigan neither more harsh nor more lenient; it was, rather, to further reduce sentencing disparity so as to reflect the current practice of the majority of circuit and recorder's court judges. See McComb, An Overview of the Second Edition of the Michigan Sentencing Guidelines, 67 MSB J 863 (1988).
Accordingly, we conclude that defendant was properly sentenced. We find no violation of the federal or state ex post facto prohibition.
Defendant also claims his life sentence for second-degree murder should shock our conscience. People v Coles, 417 Mich. 523, 550; 339 N.W.2d 440 (1983). Given the circumstances of this case, we do not find defendant's sentence to have been excessive. We also reject defendant's contention that the court failed to articulate sufficient reasons for the sentence. The trial court's failure to comment on each of the four sentencing factors listed in People v Snow, 386 Mich. 586, 592; 194 N.W.2d 314 (1972), does not destroy the propriety of the court's rationale. See People v Girardin, 165 Mich. App. 264, 267; 418 N.W.2d 453 (1987). Defendant cites no authority that "substantial and compelling" reasons were required.