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Docket Number

Docket No. 110631.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and G.L. Christopherson, Assistant Prosecuting Attorney, for the people. George C. Bush, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v. Arnold — Michigan Court of Appeals (Decided August 28, 1989)

Docket No. 110631. Panel: SHEPHERD, P.J., and BEASLEY and GRIBBS, JJ. Disposition: Leave to appeal applied for.

Factual and Procedural Background

Pursuant to a plea bargain agreement, defendant pled guilty on April 13, 1988, to delivery of more than 50 grams but less than 225 grams of cocaine, in violation of MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The factual basis for the plea was defendant's admission that on February 2, 1988, he delivered a package containing over eighty grams of cocaine to an undercover police officer in exchange for $4,500.

Defendant was sentenced on May 20, 1988, to a term of imprisonment from ten to twenty years. He appealed as of right seeking resentencing. The Court of Appeals affirmed the sentence.

Legal Issues Presented

Whether the defendant should have been sentenced under a statutory amendment effective March 30, 1988 (1987 PA 275, § 1) that: eliminated the life-probation option, reduced the mandatory minimum prison term from ten to five years, and authorized trial courts to depart from the mandatory minimum for substantial and compelling reasons — i.e., whether the amendment applied to this case pending on its effective date.
Whether the mandatory minimum prison term under the former statute (ten years) constituted cruel and unusual punishment in violation of constitutional protections.

Arguments of the Parties

Defendant's Arguments

On appeal, defendant argued for the first time that he should have been sentenced under the amended statute effective March 30, 1988, asserting that the amendment implicitly repealed the former penalties and therefore applied to his May 20, 1988 sentencing.
Defendant also contended that the former statute's mandatory minimum ten-year prison term constituted cruel and unusual punishment. He argued that the Legislature's amendment signaled recognition that the prior ten-year mandatory minimum was cruel and unusual.

People's Arguments

The opinion does not contain a detailed account of the people's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Gravedoni, 172 Mich. App. 195; 431 N.W.2d 221 (1988)	Support for statutory rule (MCL 8.4a; MSA 2.214) that new laws do not apply to actions pending on the effective date unless the Legislature expressly provides otherwise.	The court relied on Gravedoni to conclude that, because the Legislature did not expressly void the former penalties and the action was pending on the effective date of the amendment, the defendant properly was sentenced under the former statute.
People v Regelin, 178 Mich. App. 128; 443 N.W.2d 436 (1989)	Explained legislative intent behind the statutory amendment and held that the mandatory prison term under the former statute did not constitute cruel and unusual punishment.	The court cited and followed Regelin's reasoning about legislative intent (preventing dealers from avoiding imprisonment by selling small quantities) and its conclusion that the prior mandatory term was not unconstitutional, adopting Regelin's rationale to reject defendant's cruel-and-unusual-punishment challenge.
People v Schultz, 172 Mich. App. 674; 432 N.W.2d 742 (1988), lv gtd 432 Mich. 891 (1989)	Held that another section of the statute was cruel and unusual punishment (contrasting decision).	The court noted Schultz as a contrasting authority that held a different statutory section unconstitutional; Regelin discussed but did not follow Schultz, and the court here agreed with Regelin rather than Schultz.
People v Harmon, 124 Mich. App. ___; 333 N.W.2d 591 (1983), lv den 417 Mich. 1100 (1983)	Principle endorsing wide latitude for sentencing courts and recognizing legislative prerogative to prescribe sentences within constitutional bounds.	Quoted within Regelin's discussion endorsing respect for legislative sentencing schemes unless constitutional boundaries are crossed; cited as supporting the view that mandatory sentences are within legislative authority absent a constitutional violation.
People v Piasecki, 333 Mich. 122; 52 N.W.2d 626 (1952)	Authority referenced for general sentencing principles and legislative authority over sentencing.	Cited within Regelin's discussion as part of the precedent affirming legislative power to prescribe sentences and the role of courts in reviewing constitutional limits.
Attorney General v Recorder's Court Judge, 341 Mich. 461; 67 N.W.2d 708 (1954)	General sentencing and constitutional principles historically applied by Michigan courts.	Included in the quoted authority supporting the proposition that sentencing is primarily a legislative prerogative and courts should honor statutory sentences unless constitutionally impermissible.

Court's Reasoning and Analysis

The court's analysis proceeded in two discrete parts corresponding to the two principal issues.

1. Applicability of the March 30, 1988 statutory amendment (retroactivity issue)

The court identified the controlling statutory saving provision, MCL 8.4a; MSA 2.214, which unambiguously provides that actions pending on the effective date of a new law are saved and the former law remains applicable unless the Legislature expressly voided the former law.
The court observed that the Legislature did not expressly void the former penalties when it enacted the March 30, 1988 amendment (1987 PA 275, § 1), and that the criminal action against defendant was pending on the amendment's effective date.
Relying on People v Gravedoni as support for the saving provision's application, the court concluded that the trial court correctly applied the former statute and imposed the prior statutory penalty (the ten-year mandatory minimum). The defendant's claim that the amendment implicitly repealed the former penalties was rejected.

2. Cruel and unusual punishment challenge

The court addressed defendant's contention that the former statute's mandatory ten-year minimum amounted to cruel and unusual punishment, and that the Legislature's subsequent amendment demonstrated recognition of that constitutional problem. The court rejected that line of argument.
The court relied primarily on People v Regelin, which analyzed legislative intent behind the amendment (concern about small-quantity sales designed to avoid imprisonment) and concluded that legislative recognition of rigidity in sentencing does not equate to legislative admission of a constitutional violation.
The opinion quoted Regelin's discussion emphasizing (a) the Legislature's policy choice to mandate imprisonment for certain drug sales, (b) courts' preference for indeterminate sentencing but deference to legislative sentencing schemes, and (c) the proposition that courts must honor legislatively prescribed sentences unless they cross constitutional boundaries.
The court acknowledged People v Schultz as a contrasting authority that found a different statutory section to be cruel and unusual, but noted that Regelin discussed Schultz and did not follow its rationale. Agreeing with Regelin, the court concluded that the defendant's sentence under the pre-amendment statute did not violate the constitutional prohibition against cruel and unusual punishment.

Holding and Implications

Holding: Affirmed.

Consequences for the parties: The Court of Appeals affirmed the trial court's sentencing decision. Defendant's conviction and sentence of ten to twenty years' imprisonment under the former statute were upheld; defendant's requests for resentencing under the March 30, 1988 amendment and for relief on the ground of cruel and unusual punishment were denied.

Broader implications: The opinion applies the statutory saving provision (MCL 8.4a; MSA 2.214) to preserve the applicability of a former penalty when a case is pending on a statutory amendment's effective date, and it follows People v Regelin in holding that the pre-amendment mandatory minimum at issue did not constitute cruel and unusual punishment. The opinion does not announce a novel rule or overrule existing precedent; it affirms earlier treatment as described in the cited authorities.

Source: Excerpted opinion of the Michigan Court of Appeals, People v. Arnold, Docket No. 110631 (Dec. 28, 1989).

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PEOPLE v ARNOLD

PER CURIAM.

Pursuant to a plea bargain agreement, defendant pled guilty on April 13, 1988, to delivery of more than 50 grams but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The factual basis of the plea was defendant's admission that on February 2, 1988, he delivered a package of cocaine to an undercover police officer in exchange for $4,500. The package contained over eighty grams of cocaine. Defendant was sentenced on May 20, 1988, to from ten to twenty years imprisonment. He appeals as of right seeking resentencing. We affirm.

At sentencing, defendant and his attorney asserted that the life probation sentence authorized by the statute would be an appropriate penalty for defendant's offense. However, the trial court concluded from a consideration of defendant's background, which included three prior felony convictions, the circumstances of the offense and other sentencing factors that the alternative penalty authorized by the statute should be imposed. Accordingly, defendant was sentenced to the statutory mandatory minimum of ten years imprisonment.

For the first time on appeal, defendant claims he should have been sentenced under the amendment to the statute, effective March 30, 1988, which eliminated the life probation option, reduced the mandatory minimum prison term to five years, and also gave the trial court discretion to depart from the mandatory minimum when there are substantial and compelling reasons to do so. See 1987 PA 275, § 1; MCL 333.7401(2)(a)(iii) and (4); MSA 14.15(7401)(2)(a)(iii) and (4). Defendant asserts that the amendment repealed the former penalties by implication effective March 30, 1988, and, hence, he should have been sentenced on May 20, 1988, under the amended statute. We disagree for the reason that MCL 8.4a; MSA 2.214 unambiguously provides that, unless there is a specific provision voiding a former law, any actions pending on the effective date of a new law are saved. See People v Gravedoni, 172 Mich. App. 195, 197; 431 N.W.2d 221 (1988). The Legislature did not expressly void the former penalties under the statute when enacting the amendment. Further, the instant action against defendant was pending on the effective date of the amended statute. Accordingly, the trial court correctly sentenced defendant under the former statute.

Defendant also contends that the mandatory minimum prison term under the former statute constituted cruel and unusual punishment. Defendant asserts that the amendment to the statute signals recognition by the Legislature that the mandatory minimum of ten years was cruel and unusual punishment. We disagree.

In People v Regelin, 178 Mich. App. 128, 134-135; 443 N.W.2d 436 (1989), this Court explained the Legislature's intent as follows:

An analysis of the bill prepared by the Senate Fiscal Agency indicates the prime concern of the legislature was that many drug dealers were avoiding imprisonment by selling only a small quantity to a buyer upon the initial contact in case it turned out the buyer was an undercover narcotics officer. Hence, the law was amended to mandate imprisonment for the sale of even small quantities of illegal drugs as well as removing the option of lifetime probation for the sale of large quantities. In a concluding sentence, it was observed that some criticized the law for excessive rigidity in its prescription of mandatory prison terms. While the Legislature may have recognized the sentence under the existing statute to be excessively rigid, this is a far cry from concluding they acknowledged the existing provisions to be violative of the constitutional guarantees against cruel and unusual punishment.

This Court favors indeterminate sentencing and subscribes to the Socratic expression that "there is no greater injustice than to treat unequal things equally." Hence, a sentencing court should be allowed wide latitude to fashion a sentence that will take into account whether the offender is a youthful first-time offender or a repeatedly convicted hard-core felon. Nevertheless, it is a legislative prerogative to prescribe sentences and, unless constitutional boundaries are crossed, it must be honored by the courts. People v Harmon [124 Mich. App; 93; 333 N.W.2d 591 (1983), lv den 417 Mich. 1100.45 (1983)]; People v Piasecki, 333 Mich. 122; 52 N.W.2d 626 (1952); Attorney General v Recorder's Court Judge, 341 Mich. 461; 67 N.W.2d 708 (1954).

The Court went on to hold that the mandatory prison term under the statute at issue here (prior to amendment) did not constitute cruel and unusual punishment. Contrast People v Schultz, 172 Mich. App. 674; 432 N.W.2d 742 (1988), lv gtd 432 Mich. 891 (1989), which held that another section of the statute was cruel and unusual punishment. The Regelin Court discussed, but did not follow, the rationale of Schultz. Because we agree with the rationale of Regelin, we conclude that defendant's sentence does not constitute cruel and unusual punishment. Accordingly, defendant's sentence is affirmed.

Affirmed.

PEOPLE v. ARNOLD