Supreme Court of MichiganSep 25, 1990
436 Mich. 295 (Mich. 1990)
436 Mich. 295461 N.W.2d 647

Docket No. 88140.

Decided September 25, 1990.

On application by the defendant for leave to appeal, the Supreme Court in lieu of granting leave, affirmed the decision of the Court of Appeals.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jennifer A. Pilette) for the defendant.

The defendant pleaded guilty of involuntary manslaughter and received a prison term of from three to fifteen years. She seeks to be resentenced on the ground that the circuit judge erred in applying the revised sentencing guidelines of October 1, 1988, to her May 1988 offense. We are persuaded that there was no error.


The defendant was charged with open murder and possession of a firearm during the commission of a felony in connection with the May 1988 fatal shooting of her sixteen-year-old daughter. The incident occurred during an argument at the family home.

MCL 750.316; MSA 28.548.

MCL 750.227b; MSA 28.424(2).

In September 1988, the defendant pleaded guilty in Jackson Circuit Court to a reduced charge of involuntary manslaughter, admitting gross negligence in the discharge of a firearm. In exchange for her plea, the Jackson County Prosecutor agreed to the dismissal of the original charges.

MCL 750.321; MSA 28.553.

The defendant was sentenced on October 20, 1988, to serve a prison term of from thirty-six months to fifteen years. The minimum sentence was in the middle of the recommended range set forth in the second edition of the sentencing guidelines (twelve to sixty months). The second edition took effect October 1, 1988. Administrative Order No. 1988-4, 430 Mich ci.

The defendant challenged her sentence in the Court of Appeals. She argued that, since her offense was committed prior to the effective date of the second edition of the guidelines, the circuit judge should have applied the first edition. As scored by the defendant, the recommended minimum sentence under the earlier edition would have been only zero to thirty-six months. She contended that her actual sentence thus would have been less, since the circuit judge clearly did not intend to impose a sentence at the top of the guidelines.

The sentencing judge stated that he was taking into account the record, the remarks of defense counsel, and the information and recommendation in the presentence report. Upon consideration of the need to protect society and for deterrence, rehabilitation, and punishment, he was persuaded not to impose the maximum allowable sentence of from ten to fifteen years. See MCL 750.321; MSA 28.553, and People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972). Rather, the court "put the emphasis on the minimum aspects of the sentence because the law does have some compassion."

In an opinion per curiam, the Court of Appeals denied relief. 181 Mich. App. 311; 448 N.W.2d 820 (1989). The panel held that the sentencing court did not err in applying the revised guidelines of October 1, 1988, to the defendant's May 1988 offense. The Court reasoned that Administrative Order No. 1988-4 plainly required the use of the second edition in every sentencing proceeding after October 1, and that there was no ex post facto problem because the guidelines were procedural, not substantive.

The defendant asks this Court to overturn the decision of the Court of Appeals and to order that she be resentenced.


We agree with the Court of Appeals that Administrative Order No. 1988-4 required the circuit judge to apply the second edition of the sentencing guidelines when sentencing the defendant on October 20, 1988. The order states, in pertinent part:

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. [ 430 Mich ci. Emphasis added.]

Our conclusion — that use of the second edition is tied to the date that sentences are imposed, rather than to the date that offenses are committed — is consistent with the manner in which the first edition was introduced and revised. This Court initially invited judges to use the guidelines, but did not require them to do so. See Administrative Order No. 1983-3, 417 Mich cxxi, which took effect May 1, 1983. We subsequently made the use of the first edition mandatory, effective March 1, 1984. Administrative Order No. 1984-1, 418 Mich lxxx. The guidelines were routinely applied after March 1 in cases where the offenses had occurred prior to that date.

Administrative Order No. 1984-1 provided that the guidelines would be mandatory for a period of one year, effective March 1, 1984. Administrative Order No. 1985-2, 420 Mich lxii, extended the mandate until further order of the Court.

See, e.g., People v Walker, 428 Mich. 261; 407 N.W.2d 367 (1987), People v Broden, 428 Mich. 343; 408 N.W.2d 789 (1987), and People v Fleming, 428 Mich. 408; 410 N.W.2d 266 (1987).

The first edition of the sentencing guidelines was revised several times. The State Court Administrative Office issued replacement pages that contained revisions dated October 1982, April 1983, April 1984, and October 1984. These revisions were given immediate effect by sentencing judges. Thus, we reject the defendant's contention that she is entitled to be resentenced because of Administrative Order No. 1988-4. Our inquiry does not end here, however.


The defendant also asserts that application of the second edition of the sentencing guidelines violates the proscriptions against ex post facto laws in the state and federal constitutions.

Const 1963, art 1, § 10, states:

No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.

There are two relevant federal provisions. US Const, art I, § 9, cl 3 states:

No Bill of Attainder or ex post facto Law shall be passed.

US Const, art I, § 10, cl 1, states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. [Emphasis added.]

This Court has reviewed the history of these provisions. People v Stevenson, 416 Mich. 383, 394, 399; 331 N.W.2d 143 (1982). We have recognized that, although the Ex Post Facto Clause does not apply directly to the judiciary, it applies by analogy through the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Id. at 395; Bouie v City of Columbia, 378 U.S. 347, 353-354; 84 S Ct 1697; 12 L Ed 2d 894 (1964).

The United States Supreme Court considered the Ex Post Facto Clause in Calder v Bull, 3 US (3 Dall) 386; 1 L Ed 648 (1798). Justice Chase observed in that case that the term "ex post facto" predated the American Revolution, and explained his understanding of the laws which it precluded:

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 offence, in order to convict the offender. [ Id. at 390. See also Beazell v Ohio, 269 U.S. 167, 169-170; 46 S Ct 68; 70 L Ed 216 (1925).]

In a series of more recent cases, the Court has set forth the test for determining whether a law violates the ex post facto provision. In Dobbert v Florida, 432 U.S. 282, 293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), the Court said that there is no violation unless the law alters "substantial personal rights" as opposed to "modes of procedure which do not affect matters of substance." In Weaver v Graham, 450 U.S. 24; 101 S Ct 960; 67 L Ed 2d 17 (1981), the Court said that the law must be retrospective, i.e., it must apply to events occurring before its enactment, and that it must disadvantage the offender affected by it. More recently, the Court observed that "[t]he constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed." Miller v Florida, 482 U.S. 423, 431; 107 S Ct 2446; 96 L Ed 2d 351 (1987). (Emphasis in original.)

In Collins v Youngblood, 497 US ___; 110 S Ct 2715; 111 L Ed 2d 30 (1990), the Court said that the distinction set forth in Dobbert and other cases has caused confusion in the interpretation of the Ex Post Facto Clause. The Court explained that simply labeling a law "procedural" will not immunize it from scrutiny if it falls within the categories defined in Calder, supra.


The defendant relies on Miller to argue that retroactive application of the second edition of the sentencing guidelines to her offense violates the ex post facto provision. In Miller, the Court considered a similar question with regard to Florida's sentencing guidelines. There, as here, the defendant's offense was committed when the original guidelines were in effect, but the defendant was sentenced after revisions had increased the minimum range.

There are several important differences between the instant case and Miller. The most important, for purposes of our analysis, is that the Florida guidelines establish a presumptive sentencing range; a judge may depart from the guidelines only by giving "clear and convincing" reasons in writing. The only sentences that are subject to appellate review are those where there has been such a departure. Miller, supra at 426.

In Michigan, there is no such "presumptive" range. Judges are permitted to depart from the sentencing guidelines, and are required merely to explain their reasons for doing so. Further, all sentences are subject to appellate review. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983), People v Broden, 428 Mich. 343; 408 N.W.2d 789 (1987), and People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990).

Another difference between the Michigan and Florida sentencing guidelines is that the Florida scheme was enacted by the Florida Legislature, although the Florida Supreme Court developed the guidelines, themselves. Miller, supra at 425. The Michigan guidelines were not a legislative enactment.
Further, the Florida guidelines replaced that state's system of indeterminate sentencing. Id. The Michigan guidelines did not replace this state's system of indeterminate sentencing.
Still another difference is that revisions to the Florida sentencing guidelines, even though made by the Florida Supreme Court, take effect only when they are adopted by the Florida Legislature. Smith v Florida, 537 So.2d 982 (Fla, 1989). In Michigan, revisions take effect upon the approval of this Court.


The differences between the Michigan sentencing guidelines and the Florida scheme are critical to a resolution of the ex post facto question. Sentencing judges in this state are required by this Court's administrative orders to consider the minimum range recommended by the guidelines, but are not bound by it. As the Court of Appeals observed, the guidelines are but "a tool to assist the sentencing judge in the exercise of discretion." 181 Mich. App. 313.

It is helpful to keep in mind how this state's Sentencing Guidelines Advisory Committee arrives at a recommended minimum sentence range for a particular offense. The recommendation does not stem from policy or philosophical considerations to increase or decrease punishment, but instead reflects actual current practices of Recorder's Court judges and circuit judges throughout the state. See McComb, An overview of the second edition of the Michigan Sentencing Guidelines, 67 Mich BJ 863 (1988), and the discussion in Milbourn, supra, pp 655-658.

It cannot be said, therefore, that the Michigan guidelines convey substantive rights. Since there are no presumptive sentences, the guidelines as revised did not increase the punishment for the defendant's crime. Neither before nor after the revisions did the guidelines limit the discretion afforded the sentencing judge in this case by the indeterminate sentencing act. MCL 769.8; MSA 28.1080. There is no violation of the ex post facto provision where the enactment at issue alters modes of procedure rather than substantial personal rights. Dobbert and Miller, supra.

The Legislature has set the maximum penalty for the crime committed by the defendant at fifteen years. MCL 750.321; MSA 28.553. Thus, the most severe minimum sentence that the sentencing judge could have imposed was ten years. People v Tanner, n 4 supra.

After due consideration of the reasoning in Miller and of the principles set forth, above, we conclude that there was no violation of the ex post facto provision in this case. Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we affirm the decision of the Court of Appeals.



I concur in the result for the following reasons.

(1) I cannot ignore the fact that the defendant did not object to application of the second edition of the guidelines at her sentencing, nor did she file any postsentencing motions in the trial court. Thus, she failed to properly preserve the error for appellate review. The failure of appellate courts to apply the raise-or-waive requirement invites appeals on the basis of afterthought, increases the costs of, and the burden on, appellate courts to correct errors that might have been remedied if brought to the attention of the trial court, and undermines the standard of practice of trial attorneys.

(2) The sentencing guidelines are not statutory enactments and do not have the force and effect of law. Thus, the Ex Post Facto Clause is not implicated.