People of Michigan v. Lonnie James Arnold , 502 Mich. 438 ( 2018 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v ARNOLD
Docket No. 154764. Argued January 10, 2018 (Calendar No. 2). Decided July 19, 2018.
Lonnie J. Arnold was charged with aggravated indecent exposure, MCL 750.335a(2)(b),
indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c), and being a fourth-
offense habitual offender, MCL 769.12. He was convicted of both indecent-exposure counts
after a jury trial in the Monroe Circuit Court. The court, Michael A. Weipert, J., sentenced
defendant to 25 to 70 years’ imprisonment for indecent exposure by a sexually delinquent
person, to be served concurrently with a 2-to-15-year sentence for aggravated indecent exposure.
Defendant appealed, arguing that the court was required to sentence him to one day to life in
prison under MCL 750.335a(2)(c). The Court of Appeals, GLEICHER, P.J., and CAVANAGH and
FORT HOOD, JJ., initially held in an unpublished per curiam opinion, issued April 12, 2016
(Docket No. 325407), that, under People v Buehler (On Remand), 271 Mich. App. 653 (2006)
(Buehler II), rev’d 477 Mich. 18 (2007) (Buehler III), the sentencing guidelines, rather than MCL
750.335a(2)(c), controlled sentences for defendants convicted of indecent exposure by a sexually
delinquent person, but because People v Lockridge, 498 Mich. 358 (2015), had rendered the
sentencing guidelines advisory in the time since defendant had been sentenced, the panel
remanded the case to the sentencing court to determine whether it would have adhered to the
guidelines had it known they were only advisory. Defendant moved for reconsideration, arguing
that the Court of Appeals had erred by relying on Buehler II. While the motion was pending, the
Court of Appeals decided People v Campbell, 316 Mich. App. 279 (2016), which held that
defendants convicted of indecent exposure by a sexually delinquent person must be sentenced to
one day to life in prison. Consequently, the panel granted defendant’s motion for
reconsideration, vacated its previous opinion, and, in an unpublished per curiam opinion issued
September 22, 2016, held that, under Campbell, defendant must be sentenced to one day to life in
prison. The Supreme Court granted the prosecutor’s application for leave to appeal. 500 Mich.
964 (2017).
In a unanimous opinion by Justice CLEMENT, the Supreme Court held:
MCL 750.335a(2)(c) does not require an individual convicted of being a sexually
delinquent person to be given a sentence of one day to life in prison. The one-day-to-life scheme
was correctly construed in People v Kelly, 186 Mich. App. 524 (1990), as an option that a trial
court may consider imposing alongside the other statutory penalties available under the statute.
The decisions to the contrary in Campbell and in People v Butler, 465 Mich. 940 (2001), were
overruled. The changes from “may be” and “shall” to “is” that 2005 PA 300 made to 1952 PA
73 were merely stylistic. The reasoning in Buehler III, which misconstrued the nature of the
one-day-to-life sentencing option provided by MCL 750.335a and MCL 767.61a and
inaccurately indicated that the 2005 PA 300 amendment of MCL 750.335a might have been
meaningful, was disavowed. The Court of Appeals judgment was vacated, and the case was
remanded to the Court of Appeals for reconsideration.
1. Criminal defendants charged with committing certain sex crimes can also be charged
with having been a “sexually delinquent person” at the time of the offense. The sexually
delinquent person scheme dates back to a series of statutes adopted in 1952, which were a further
development of a scheme from the mid-1930s that allowed “sexual psychopaths” to be
committed indefinitely to a state mental institution until their condition no longer presented a
threat to public safety. The legislative history of these schemes indicated that sexual
delinquency was considered a mental illness that precluded a fixed sentence and required a more
flexible and less determinate sentencing framework.
2. The predicate offense for sexual-delinquency status with which defendant was
charged was indecent exposure. Under MCL 750.335a(2)(a) and (b), indecent exposure is a
misdemeanor punishable by not more than one year in prison, or not more than two years if
aggravated circumstances are present, but when committed by a sexually delinquent person,
MCL 750.335a(2)(c) provides that the offense is punishable for an indeterminate term, the
minimum of which is one day and the maximum of which is life. MCL 767.61a sets forth the
procedure by which an individual accused of one of the predicate offenses can also be accused of
being a sexually delinquent person, stating that in any prosecution for an offense committed by a
sexually delinquent person for which may be imposed an alternate sentence to imprisonment for
an indeterminate term, the minimum of which is one day and the maximum of which is life, the
indictment shall charge the offense and may also charge that the defendant was, at the time said
offense was committed, a sexually delinquent person. MCL 767.61a further provides that upon a
verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge
or to both charges, the court may impose any punishment provided by law for such offense.
3. Kelly correctly construed the one-day-to-life sentence set forth in MCL 750.335a(2)(c)
as not mandatory but rather an optional alternative. MCL 767.61a characterizes the one-day-to-
life sentence as an alternate sentence. The dictionary indicates that the adjective “alternate” is
related to “alternative,” which may be used to refer to a variant or substitute in cases where no
choice is involved, but that this usage also coexists with the notion of “alternate” as “optional.”
In 1952 PA 73, the Legislature provided that indecent exposure was “punishable by
imprisonment in the county jail for not more than 1 year” and, if committed by a sexually
delinquent person, “may be punishable by imprisonment in the state prison for an indeterminate
term, the minimum of which shall be 1 day and the maximum of which shall be life.” The word
“punishable” expresses only the potential for punishment, not its necessity, meaning that either
up to a year in jail or a one-day-to-life sentence were possibilities. Further, the statute stated
that, when dealing with a sexually delinquent person, the offense “may be” punishable by a one-
day-to-life sentence, and “may” is ordinarily permissive. Moreover, the Legislature is capable of
adopting nondiscretionary sentences and has done so for other crimes. Construing the “alternate
sentence” for sexually delinquent persons as entirely optional was also more consistent with the
broader law of sentencing in Michigan when the sexual-delinquency scheme was adopted, at
which time, before the statutory sentencing guidelines’ enactment, a judge faced with an
adjudicated sexual delinquent guilty of indecent exposure could choose any legally available
sentencing option the judge deemed appropriate. Construing the one-day-to-life option as an
alternative that the trial court was free to consider alongside an ordinary criminal sentence of up
to one year in jail was also supported by the history of the sexual-delinquency scheme. In light
of these considerations, Kelly correctly construed the one-day-to-life alternate sentence as an
option a sentencing judge could draw upon, alongside and not to the exclusion of other available
options. The statement in Butler that there was no alternative to the mandatory indeterminate
sentence of one day to life in prison when the trial court chooses to incarcerate a person
convicted under MCL 750.335a and MCL 750.10a was incorrect. One day to life was not a
mandatory sentence even when the trial court chose to incarcerate the defendant, nor has any
aspect of the legislative sentencing guidelines purported to make the one-day-to-life sentence
mandatory.
4. Kelly correctly held that the sentence of one day to life was not modifiable. While
1952 PA 73 stated that indecent exposure by a sexually delinquent person may be punishable by
a special indeterminate sentence, it also stated that if such a sentence was imposed, the minimum
of the term shall be one day and the maximum of the term shall be life. The use of the word
“shall” suggests that a trial court had no discretion to further modify the terms of the sentence,
because if it chose to avail itself of the special indeterminate sentence, it had to sentence
according to the special sentence’s terms. Moreover, MCL 767.61a characterizes “one day to
life” as an “alternate” sentence, which indicates that it ought to function in some distinct way
from a term-of-years sentence. The history of the enactment of the sexual-delinquency scheme
further supports this conclusion. While 1952 PA 72 has since been repealed, it was adopted
contemporaneously with the sexual-delinquency scheme, and it directed the Department of
Corrections on how to process persons paroled from a sentence of from one day to life. There
were no instructions for how to process persons paroled from a sentence of, for example, two
days to life. Construing “one day to life” as being nonmodifiable was also consistent with the
history of the sexual-delinquency scheme, the purpose of which was to create a different
sentencing option in which the judge gave up control over the amount of time the defendant
served to experts who would assess when the defendant was well enough to rejoin society.
5. Kelly correctly held that the one-day-to-life sentencing scheme was an exception to
the provision in MCL 769.9(2) that prohibits a court from imposing a sentence in which the
maximum penalty is life imprisonment with a minimum for a term of years included in the same
sentence, otherwise known as the ban on “life tails.” MCL 769.9(2) applies only to “cases where
the maximum sentence in the discretion of the court may be imprisonment for life or any number
or term of years.” The phrasing “life or any term of years” is used verbatim in a variety of
criminal statutes. When MCL 750.335a was adopted, it spoke of “imprisonment in the state
prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of
which shall be life,” and MCL 767.61a speaks of “an indeterminate term, the minimum of which
is 1 day and the maximum of which is life.” This difference in wording suggested that sexual-
delinquency cases should be removed from MCL 769.9(2). Moreover, because MCL 769.9(2) is
a general indeterminate sentencing statute while the sexual-delinquency scheme is a specific,
integrated scheme, the more specific statute controls. Therefore, the one-day-to-life sentence the
Legislature adopted in 1952 was an alternative sentencing option that existed alongside other
options, such as a life sentence or a term of years.
6. The decision in Buehler III was based on a flawed initial premise about the sexual-
delinquency scheme, and it did not appreciate the nature of the one-day-to-life sentence and the
tension between it and the sentencing guidelines. The remand order in Buehler directed the
Court of Appeals to compare the guidelines against “the indeterminate sentence prescribed by
MCL 750.335a.” But MCL 750.335a did not prescribe anything; instead, it only made an option
available. Buehler also presumed that the trial court’s deviation from the sentencing guidelines
should have been the end of that case’s analysis. But at least until the adoption of the sentencing
guidelines, no sentence on the Class A sentencing grid would even have been legal for a judge to
impose on a sexually delinquent person guilty of indecent exposure. Buehler III did not consider
whether the adoption of the legislative sentencing guidelines could make legal a sentence which
would not otherwise have been legal before the guidelines were adopted. Accordingly, Buehler
III was not a binding statement of the proper interpretation of these statutes.
7. Campbell was incorrectly decided. In Campbell, the Court of Appeals held that the
conflict between the statutory language provided under MCL 750.335a(2)(c) and the sentencing
guidelines, MCL 769.34, must be resolved in favor of applying MCL 750.335a(2)(c) in light of
the fact that the sentencing guidelines were rendered advisory by People v Lockridge, 498 Mich.
358 (2015), whereas the sentence provided under MCL 750.335a(2)(c) was stated in mandatory
terms. First, MCL 750.335a(2)(c) is not “stated in mandatory terms.” When adopted, it said that
a sexually delinquent person who committed indecent exposure “may be punishable . . . for an
indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be
life.” After 2005 PA 300, it now says that indecent exposure by a sexually delinquent person “is
punishable . . . for an indeterminate term, the minimum of which is 1 day and the maximum of
which is life.” This change in wording had no effect on the meaning of the statute and was
merely stylistic. Further, MCL 750.335a(2)(c) still says only that the offense is punishable by a
one-day-to-life sentence, and “punishable” expresses only the possibility of punishment, not its
necessity. Moreover, MCL 767.61a has not been amended, meaning that it still characterizes one
day to life as an alternate sentence, not a mandatory sentence. And MCL 767.61a lays out a
procedure common to all five sexual-delinquency crimes, yet each of the other four still uses the
former “may be punishable” and “shall be 1 day . . . shall be life” wording. Because the sexual-
delinquency alternative sentence is intended to work the same for all five offenses, if it is
optional for the others, it must still be optional for indecent exposure. Second, Campbell
ascribed inappropriate significance to Lockridge, which concluded that the scoring process for
the legislative sentencing guidelines violated the Sixth Amendment and, as a remedy for that
constitutional violation, directed that henceforth the guidelines would be only advisory. Neither
identifying that problem nor crafting that remedy illuminated whether the adoption of the
sentencing guidelines and the classification of indecent exposure by a sexually delinquent person
as a Class A felony could make legal a sentence which would not have been legal before the
adoption of the sentencing guidelines. Third, the Court of Appeals relied on the series of
decisions in Buehler, which misconstrued the nature of the one-day-to-life sentencing option
provided by MCL 750.335a and MCL 767.61a and inaccurately indicated that the 2005 PA 300
amendment to MCL 750.335a might have been meaningful. For these reasons, Campbell was set
aside.
8. Given the significance of this decision, which embraced Kelly, overruled Butler, and
disavowed Buehler, the case was remanded to the Court of Appeals for reconsideration in light
of the revised state of the law. On remand, the Court of Appeals was directed to resolve what
effect the adoption of the legislative sentencing guidelines had on the operation of the sexual-
delinquency scheme as it was construed before the adoption of the guidelines.
Court of Appeals judgment vacated; case remanded to the Court of Appeals.
©2018 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
FILED July 19, 2018
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 154764
LONNIE JAMES ARNOLD,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
CLEMENT, J.
In this case we determine whether individuals convicted of being “sexually
delinquent persons” must be given a “1 day to life” prison sentence in accordance with
MCL 750.335a(2)(c). We conclude that a “1 day to life” sentence has never been
required by the statutory scheme, overruling the Court of Appeals’ contrary conclusion in
People v Campbell, 316 Mich. App. 279; 894 NW2d 72 (2016), and remand this case to
the Court of Appeals for reconsideration in light of our conclusion.
I. FACTS AND PROCEDURAL HISTORY
Defendant Lonnie Arnold masturbated in front of an employee at the Monroe
Public Library in January 2014. He was charged with aggravated indecent exposure,
MCL 750.335a(2)(b), indecent exposure by a sexually delinquent person, MCL
750.335a(2)(c), and also with being a fourth-offense habitual offender, MCL 769.12. He
was convicted after a jury trial on both substantive indecent-exposure counts.
At sentencing, the Department of Corrections (DOC) recommended1 that
defendant serve 225 months to 40 years in prison on the count of indecent exposure by a
sexually delinquent person, to be served concurrently with 2 to 15 years on the
aggravated indecent-exposure count.2 At sentencing, defense counsel, Steven Hyder,
asked that defendant be given “1 day to life”:
The law still says that a minimum term of sentence one day to life is what
the sentence should be. . . . [T]his Court can sentence him to one day on
any conviction, one day to life imprisonment. I don’t believe that you have
to follow the guidelines for the habitual offender and follow them in
sentencing him to 225 months, is what the recommendation is, Judge.
The trial judge, however, rejected this request, concluding that it was not legal:
The Court: I will tell you this, Mr. Hyder, if I did that one day to
life, DOC would write to me and say I cannot sentence him to life. They
would say you have to set a maximum because I’ve had that happen on
other cases already.
1
Before sentencing, the DOC is required to prepare a presentence investigation report
that includes “[a] specific written recommendation for disposition” and a “recommended
sentence.” MCL 771.14(1), (2)(c), and (2)(e)(v).
2
While the maximum sentence for aggravated indecent exposure is ordinarily 2 years,
MCL 750.335a(2)(b), defendant’s status as a fourth-offense habitual offender increased
the maximum to 15 years, MCL 769.12(1)(c).
2
Mr. Hyder: Apparently, there’s conflict between [the DOC] then
and the statute because I’m sure this Court will review the statute in depth,
and I’m sure the Court has saw what the sentence is on—on the law scope.
I’m relying upon the—
The Court: Well, I’ll just tell you this. I have to give him a tail. I
can’t just say life because DOC will write to me and say you can’t do that.
There’s a statute on it that says that. Okay.
The trial court sentenced defendant to 25 to 70 years’ imprisonment on the controlling
count, to be served concurrently with a 2-to-15-year sentence for aggravated indecent
exposure.3
In the Court of Appeals, defendant argued that he had to be sentenced to “1 day to
life” rather than under the sentencing guidelines. In an unpublished opinion, the panel
concluded that the sentencing guidelines still controlled sentences for defendants
convicted of indecent exposure by a sexually delinquent person, relying on People v
Buehler (On Remand), 271 Mich. App. 653; 723 NW2d 578 (2006) (Buehler II).4 That
said, during the pendency of defendant’s appellate proceedings this Court had decided
People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), making the sentencing
guidelines advisory. The panel therefore remanded to the trial court to determine whether
it would have adhered to the guidelines had it known they were only advisory.
3
The Court of Appeals ultimately set aside defendant’s sentence for aggravated indecent
exposure for reasons unrelated to the questions presented in this appeal, relying on
People v Franklin, 298 Mich. App. 539; 828 NW2d 61 (2012). People v Arnold,
unpublished per curiam opinion of the Court of Appeals, issued April 12, 2016 (Docket
No. 325407), p 4, vacated in part by order entered September 26, 2016.
4
Arnold, unpub op at 5. This part of the opinion was later vacated.
3
Defendant moved for reconsideration, arguing that the Court of Appeals erred by
relying on Buehler II. In the meantime, the Court issued its opinion in People v
Campbell, 316 Mich. App. 279; 894 NW2d 72 (2016), in which it held that defendants
convicted of indecent exposure by a sexually delinquent person must be sentenced to “1
day to life” under MCL 750.335a(2)(c). Id. at 300. Consequently, the panel in the
instant case granted reconsideration and, in an unpublished opinion, held that defendant,
like the defendant in Campbell, must be sentenced to “1 day to life.” People v Arnold
(On Reconsideration), unpublished per curiam opinion of the Court of Appeals, issued
September 22, 2016 (Docket No. 325407), p 2. We then granted leave to appeal. People
v Arnold, 500 Mich. 964 (2017).
II. STANDARD OF REVIEW
Questions of statutory interpretation are subject to de novo review. People v
Babcock, 469 Mich. 247, 253; 666 NW2d 231 (2003).
III. LEGAL BACKGROUND
A. SEXUAL DELINQUENCY IN MICHIGAN
Criminal defendants charged with committing certain sex crimes also can be
charged with having been a “sexually delinquent person” at the time of the offense. In
People v Winford, 404 Mich. 400, 405-406; 273 NW2d 54 (1978), we discussed the basic
contours of the sexually-delinquent-person scheme:
The history of sexual delinquency legislation clearly indicates the
Legislature’s intent to create a comprehensive, unified statutory scheme.
This legislation was enacted to provide an alternate sentence for certain
specific sexual offenses where evidence appeared to justify a more flexible
form of incarceration. . . .
4
To this end, the Legislature introduced language into several
previously existing categories of sexual offenses to allow prosecution for
sexual delinquency. . . .
To help implement these statutory changes, the Legislature also
separately enacted a definitional provision and a procedural provision as
general guidelines in sexual delinquency prosecutions.
Winford thus laid out three main components of the sexually-delinquent-person scheme:
(1) predicate offenses that are eligible for “a more flexible form of incarceration” when
committed by a sexually delinquent person, (2) a definition of “sexually delinquent
persons,”5 and (3) a “procedural provision” containing charging instructions.
The predicate offense for sexual delinquency status with which defendant in the
instant case was charged is indecent exposure. The governing statute provides:
(1) A person shall not knowingly make any open or indecent
exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as
follows:
(a) Except as provided in subsection (b) or (c), the person is guilty of
a misdemeanor punishable by imprisonment for not more than 1 year, or a
fine of not more than $1,000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, [or]
buttocks . . . while violating subsection (1), the person is guilty of a
misdemeanor punishable by imprisonment for not more than 2 years or a
fine of not more than $2,000.00, or both.
5
While not ultimately pertinent to the outcome of this case, a “sexually delinquent
person” is defined as “any person whose sexual behavior is characterized by repetitive or
compulsive acts which indicate a disregard of consequences or the recognized rights of
others, or by the use of force upon another person in attempting sex relations of either a
heterosexual or homosexual nature, or by the commission of sexual aggressions against
children under the age of 16.” MCL 750.10a.
5
(c) If the person was at the time of the violation a sexually
delinquent person, the violation is punishable by imprisonment for an
indeterminate term, the minimum of which is 1 day and the maximum of
which is life. [MCL 750.335a.]
Thus, indecent exposure is a one-year misdemeanor, with aggravated circumstances
making it a two-year “misdemeanor,”6 but when committed by a “sexually delinquent
person,” the offense “is punishable by imprisonment for an indeterminate term, the
minimum of which is 1 day and the maximum of which is life.” The “procedural
provision,” MCL 767.61a, sets out how an individual accused of one of the predicate
offenses can also be accused of being a sexually delinquent person:
In any prosecution for an offense committed by a sexually
delinquent person for which may be imposed an alternate sentence to
imprisonment for an indeterminate term, the minimum of which is 1 day
and the maximum of which is life, the indictment shall charge the offense
and may also charge that the defendant was, at the time said offense was
committed, a sexually delinquent person. . . . Upon a verdict of guilty to
the first charge or to both charges or upon a plea of guilty to the first charge
or to both charges the court may impose any punishment provided by law
for such offense.
Defendant’s sentencing illustrates the interpretive challenges posed by these
statutes. Defendant did not challenge the presentence investigation report prepared by
the DOC. The sentencing guidelines list indecent exposure by a sexually delinquent
person as a Class A felony, MCL 777.16q, and the proposed scoring of defendant’s
guidelines variables placed him in cell F-III of the Class A grid, which provides for a
minimum sentence of 135 to 225 months, MCL 777.62, the high end of which was then
6
“Misdemeanors” with two-year maximum sentences present recurring interpretive
challenges. See, e.g., People v Smith, 423 Mich. 427; 378 NW2d 384 (1985); People v
Washington, ___ Mich ___; ___ NW2d ___ (2018) (Docket No. 156283).
6
doubled to 450 months because defendant was a fourth-offense habitual offender, MCL
777.21(3)(c). Given the prospect of being forced to spend at least 11.25 years in prison
before being eligible for parole, MCL 791.234(1), defendant understandably preferred the
prospect of a sentence with a one-day minimum. The trial court, however, concluded that
it could not give him a “life tail,” arguing that the DOC would not accept such a sentence.
In so stating, the court was apparently referring to MCL 769.9(2), which provides:
In all cases where the maximum sentence in the discretion of the
court may be imprisonment for life or any number or term of years, the
court may impose a sentence for life or may impose a sentence for any term
of years. If the sentence imposed by the court is for any term of years, the
court shall fix both the minimum and the maximum of that sentence in
terms of years or fraction thereof, and sentences so imposed shall be
considered indeterminate sentences. The court shall not impose a sentence
in which the maximum penalty is life imprisonment with a minimum for a
term of years included in the same sentence. [Emphasis added.]
Consequently, the trial court imposed a sentence under the guidelines, with defendant’s
25-year minimum being within the 135- to 450-month guidelines range.
Yet the trial court did not acknowledge that, in People v Kelly, 186 Mich. App. 524;
465 NW2d 569 (1990), the Court of Appeals had already addressed the relationship
between a “1 day to life” sentence for sexual delinquents and MCL 769.9(2). In that
case, the Court of Appeals “view[ed] the sexually delinquent sentencing scheme as a
specific scheme which controls over the general indeterminate sentence act,” making it
“an exception to the indeterminate sentence provision . . . .” Id. at 531. A “1 day to life”
sentence thus was said not to violate MCL 769.9(2). Kelly further held that the “1 day to
life” option was not subject to modification. In Kelly, the defendant was sentenced to life
imprisonment, and the Court vacated his sentence and remanded for resentencing. It said
7
that the defendant could be resentenced only “to imprisonment in the county jail for not
more than one year, to a fine of not more than $500,[7] or to an indeterminate prison term
of from one day to life.” Id.
There have been two pertinent statutory changes since Kelly was decided. First,
the legislative sentencing guidelines were enacted by 1998 PA 317. The sentencing
guidelines treat sexual delinquency in a very different fashion from that expressed in
Kelly. Kelly held, regarding incarceration, that the trial court had only the option of up to
one year (now up to two years), or a sentence of “1 day to life”; by contrast, the
guidelines purport8 to require that defendant be given a minimum sentence of at least 135
months. And, as this opinion will discuss further, while this Court has indicated that
indecent exposure by a sexually delinquent person is governed by the sentencing
guidelines, see People v Buehler (Buehler III), 477 Mich. 18, 24 n 18; 727 NW2d 127
(2007), we have yet to consider the tension between Kelly’s interpretation of the sexual
delinquency scheme and the guidelines’ treatment of that scheme. Second, 2005 PA 300
adjusted the “1 day to life” language in MCL 750.335a, changing it from “may be
punishable by imprisonment in the state prison for an indeterminate term, the minimum
7
When Kelly was decided, MCL 750.335a had not been amended either to include the
two-year enhanced sentence for aggravated indecent exposure or to increase the fine to a
maximum of $2,000. See 1952 PA 73; 2005 PA 300.
8
We say “purport” to require because, while MCL 769.34(2) says that “the minimum
sentence imposed by a court of this state . . . shall be within the appropriate sentence
range under the . . . sentencing guidelines,” we held in People v Lockridge, 498 Mich.
358; 870 NW2d 502 (2015), that the Sixth Amendment requires the guidelines to be
advisory and not mandatory.
8
of which shall be 1 day and the maximum of which shall be life,” 1952 PA 73, to “is
punishable by imprisonment for an indeterminate term, the minimum of which is 1 day
and the maximum of which is life.”
The fundamental question presented by this case is how to construe the sentence
of “1 day to life” provided for in MCL 750.335a and MCL 767.61a. The prosecutor
effectively argues that “1 day to life” means “life or any term of years,” such that a
sentencing court may impose any sentence, including the one imposed here. The
prosecutor’s argument is based largely on the fact that the sentencing guidelines list this
offense as a Class A felony. Defendant, by contrast, argues that “1 day to life” is an
unmodifiable sentence to which he must be sentenced. Because of the sentencing
guidelines’ role in this debate, to resolve this case two determinations must be made.
First, we must determine the proper interpretation of the sexual-delinquency scheme
before the sentencing guidelines were adopted, which includes reviewing whether Kelly
was rightly decided. Then, our having construed the sexual-delinquency scheme before
the sentencing guidelines were adopted, the effect the adoption of the sentencing
guidelines had on the sexual-delinquency scheme must be determined, along with an
evaluation of the effect of 2005 PA 300 on the scheme.
To make sense of the “1 day to life” sentence, we must understand the
characterization of it in MCL 767.61a as an “alternate sentence.” As will be discussed at
greater length, this word choice is open to multiple readings. As a result, and particularly
in light of Winford’s observation that the history of the sexually-delinquent-person
9
scheme helpfully illuminates its meaning,9 we turn to examining the history of how
sexual delinquency came to be a part of Michigan law.
B. THE HISTORY OF SEXUAL DELINQUENCY IN MICHIGAN
The sexually-delinquent-person scheme dates back to a series of statutes adopted
in 1952. We offered a wide-ranging discussion of the context of its adoption in People v
Helzer, 404 Mich. 410, 420-421; 273 NW2d 44 (1978), overruled on other grounds by
People v Breidenbach, 489 Mich. 1; 798 NW2d 738 (2011):
A close examination of the legislative history of sexual delinquency
demonstrates a sound basis for an alternate sentencing interpretation. At
the time the concept became part of Michigan law, related statutory
provisions were enacted which clearly indicate sexual delinquency was
conceived as possible mental illness precluding a fixed sentence. The
concept of sexual delinquency was included in the then-existing mental
health code and Department of Corrections Act, which specifically
provided for treatment and early release upon satisfactory review by the
parole board. The intended result entailed a more flexible and less
determinate sentencing framework than set terms of imprisonment. This
flexible form of incarceration was meant to entirely replace the more
structured and limited sentence provided upon conviction of the principal
charge.
. . . In sum, sexual delinquency was part of a much broader scheme
of rehabilitation involving a sentence adjusted to defendant’s treatment and
recovery from possible mental illness. Thus the sentence for being sexually
delinquent was not primarily penal. Punishment within a specific limited
period for the principal offense was reserved for those whose psychiatric
histories, considered after conviction on the principal charge, reflected no
serious tendency toward pathologically repetitive, compulsive, forceful or
9
While we generally do not rely on legislative history, see In re Certified Question from
the United States Court of Appeals for the Sixth Circuit, 468 Mich. 109, 115 n 5; 659
NW2d 597 (2003), in this case it provides useful historical information that does not bear
directly on the meaning of the statutory text.
10
aggressive acts. So conceived, the sexually delinquent person concept was
clearly intended to entail a more flexible, alternate form of sentencing.
But “[i]n construing a statute it is important to consider the law as it existed prior to the
enactment, and particularly the mischief sought to be remedied by legislation.” Mich
Dairy Co v Runnels, 96 Mich. 109, 111; 55 N.W. 617 (1893). The 1952 “sexually
delinquent person” scheme was a response to even older “sexual psychopath” legislation,
known as the “Goodrich Act,” enacted in the 1930s.
“During the late 1930s, American criminal law began to address the sexual
psychopath statutorily.” Denno, Life Before the Modern Sex Offender Statutes, 92 Nw U
L Rev 1317, 1344 (1998). See also Anno: Statutes relating to sexual psychopaths, 24
ALR2d 350, 351, § 1 (stating, in 1952, that “[s]tatutes of the type under consideration are
a recent development in the law—a development occurring mainly during the last two
decades”). The general intent was to “provide civil commitment, segregation, and
treatment of the sexual psychopath rather than criminal punishment.” Id. Michigan went
through several rounds of implementing such a system, each of which was responsive to
perceived defects in the predecessor, before arriving at our present scheme.
1. THE FIRST GOODRICH ACT
On Thursday, September 20, 1934, an 11-year-old seventh-grader in Detroit
disappeared. Girl, 11, Kidnaped, Police Fear After 2-Day Hunt Fails, Detroit Free Press
(September 22, 1934), p 1. Her “violated body” was found in a trunk in the apartment of
a Merton Goodrich. Nationwide Hunt Starts for Maniac Killer Who Lured Gallaher Girl
to Her Death; Suspect Freed by Ohio’s Legal Bungling, Detroit Free Press (September
27, 1934), p 1. Goodrich had been “[t]wice committed to the Ohio State Hospital for the
11
Criminal Insane at Lima for attacks on girls . . . .” Id. In response, the Michigan
Legislature adopted the “Goodrich Act,” 1935 PA 88, which “was the first [sexual
psychopath law] to be enacted” in the country. Sex Offender Statutes, 92 Nw U L Rev at
1351 n 171.10 A legislative committee described its genesis as follows:
The original Goodrich Act was passed, like most such legislation, in
direct reaction to a particularly brutal crime. The mutilated and ravished
body of a young schoolgirl named Corinne Gallagher had been found
crammed into a trunk in a Detroit apartment, where a man named Merton
Goodrich had lived.
Goodrich, who had a criminal record and had once been committed
to a mental institution after a sex offense, was arrested under a different
name in New York for child-molesting, identified by his fingerprints, and
returned to Michigan to stand trial.
Public Act 88 of 1935, hurriedly tailored to his case in detail,
provided for procedures under the Code of Criminal Procedures whereby
persons appearing to be sex degenerates could, after serving prison
sentences for specified sex crimes, be committed indefinitely to mental
institutions. This law was hurriedly passed to take immediate effect on
May 27, 1935. [Interim Report of the Special Committee on Mental Health
Legislation for Criminal Cases, 5 1967 House Journal 115, 118.]
The statute amended the Code of Criminal Procedure and provided that, when a
defendant was convicted of certain sex-related offenses, if the defendant “shall, though
not insane,[11] feeble-minded or epileptic, appear to be psychopathic, or a sex degenerate,
10
While some sources list 1937 PA 196 as the original Goodrich Act, e.g., Sex Offender
Statutes, 92 Nw U L Rev at 1351 n 171, it is apparent that the genesis of the legislation
was 1935 PA 88, see, e.g., Morris, Mental Illness and Criminal Commitment in
Michigan, 5 U Mich J L Reform 1, 39 (1971).
11
“The sexual psychopath statutes . . . regarded sexual psychopaths as neither normal nor
legally insane . . . .” Sex Offender Statutes, 92 Nw U L Rev at 1352. See also Comment,
Validity of Sex Offender Acts, 37 Mich. L Rev 613, 617 (1939) (“Today psychiatrists
recognize a large intermediate group of psychopathic personalities, persons neither
12
or a sex pervert, with tendencies dangerous to public safety, the trial court before
pronouncing sentence shall institute and conduct a thorough examination and
investigation of such person . . . .” 1935 PA 88, § 1a. The defendant was “entitled to a
jury hearing” for this investigation, but if the requisite mental condition was proved, the
court was to direct that after the defendant had served his jail or prison term, the
defendant was to “be removed and committed to such suitable state hospital or state
institution as the court may designate in such commitment, to remain in such state
hospital or state institution until said court shall adjudge that such person has ceased to be
a menace to the public safety because of said mental condition.” Id.
The 1935 statute “was the genesis of [a] further amendment and addition in
1937 . . . .” People v Frontczak, 286 Mich. 51, 55; 281 N.W. 534 (1938). The new law,
1937 PA 196, “amended . . . the former act so as to provide . . . for commitment to a
suitable State hospital, with suspension of sentence or holding the same in abeyance,”
Frontczak, 286 Mich. at 55, with annual reviews of the defendant’s condition (subject to a
jury trial) until such time as the trial court concluded that the defendant “ha[d] ceased to
be a menace to the public safety because of such tendencies and mental condition,” 1937
PA 196, § 1a, at which point the defendant would receive credit against his sentence for
the time spent in treatment. The 1937 law also added a process by which defendants who
were already serving time in prison could be evaluated. When an existing prisoner
strictly sane nor insane by conventional standards. . . . Particularly, most of those
convicted of sex crimes must be regarded not as insane, but as psychopathic
personalities.”); Anno, 24 ALR2d at 351, § 1 (stating that sexual psychopath laws
“recognize that the sexual psychopath is neither normal nor legally insane . . . .”).
13
“appear[ed] to be a sex degenerate or a sex pervert, or appear[ed] to be suffering from a
mental disorder characterized by marked sexual deviation, with tendencies dangerous to
public safety, the commissioner of pardons and paroles” was authorized to “file his
petition [making such allegations] in the circuit court of the county where such person
may be confined,” with the defendant to receive a local jury trial as to his mental state.
1937 PA 196, § 1b.
We held in Frontczak that 1937 PA 196, § 1b, was unconstitutional. The
defendant in Frontczak had been convicted a few months before 1937 PA 196 took effect
and was serving time at the prison in Ionia. A petition was filed against him and tried in
Ionia circuit court, and he was committed under the act. We explained:
This enactment is more than an inquest relative to the mental
condition of a prisoner because the company in which it is found is a part of
criminal procedure following conviction of a criminal offense and after
sentence and during confinement and, in the instance at bar, removed from
the jurisdiction of the trial court and domicile of the prisoner and vested in
another court, at a point removed from the prisoner’s former domicile, and
where he is to be tried by a jury in a vicinage where the criminal law has
him in confinement and where he committed no crime. . . .
Section 1b . . . is void, as subjecting an accused to two trials and
convictions in different courts for a single statutory crime, with valid
sentence interrupted by supplementary proceeding in another court, with
confinement in a non-penal institution and with possible resumption of
imprisonment under the original sentence. If not for a single offense, then
one trial is for a penalized overt act and the other for having a mental
disorder, characterized by marked “sexual deviation.” For an overt act
offense the accused has a right to trial by jury of the vicinage, while under
this act, for no statutory offense, he is to be tried by a jury of another
vicinage, possibly far removed from his former domicile and friends and, if
penniless and friendless, and the procedure is not under the criminal code
he cannot obtain counsel or have witnesses at public expense. If the
procedure is not under the criminal code, then the enactment is no
amendment or addition to that code and a mere estray and a nullity.
[Frontczak, 286 Mich. at 57-58.]
14
We later held in In re Boulanger, 295 Mich. 152; 294 N.W. 130 (1940), that 1935 PA 88,
§ 1a, as amended by 1937 PA 196, § 1a, was similarly unconstitutional.
2. THE SECOND GOODRICH ACT
In response to Frontczak, the Legislature adopted 1939 PA 165,12 and repealed the
first Goodrich Act in 1939 PA 199.13 The new law was pointedly not made part of the
Code of Criminal Procedure,14 but was instead an independent statutory scheme. It
defined a “criminal sexual psychopathic person” as “[a]ny person who is suffering from a
mental disorder and is not insane or feeble-minded, which mental disorder has existed for
a period of not less than 1 year and is coupled with criminal propensities to the
commission of sex offenses.” 1939 PA 165, § 1. The procedure was no longer confined
to enumerated sex crimes, but instead was available in any criminal case. The
prosecuting attorney was to allege that the defendant was a “criminal sexual psychopathic
12
See Interim Report, 5 1967 House Journal at 118 (“The present Goodrich Act, Public
Act 165 of 1939, was perhaps less of a reaction to a shocking crime than a reaction to an
adverse Supreme Court decision.”).
13
There was actually a second piece of legislation in the first Goodrich Act: 1935 PA 87,
which created a process by which proceedings before a justice of the peace for sex crimes
could be referred to the circuit court for the same procedures as in 1935 PA 88. Our
Frontczak decision and 1939 PA 199 left it “render[ed] ineffective,” OAG, 1941-1942,
No. 23908, p 623, at 623 (June 11, 1942), although it was not until 1990 PA 219 that the
Legislature repealed it as a house-cleaning measure on the advice of the Michigan Law
Revision Commission, see House Legislative Analysis, HB 4754 (January 7, 1991);
Michigan Law Revision Commission, 10th Annual Report (1975), pp 123-124.
14
See Report of the Senate Interim Study Committee Pertaining to Criminal Sexual
Deviates, 2 1958 Senate Journal 1019, 1021 (“Following the Frontczak decision, . . . the
Legislature at its next session in 1939 enacted P.A. No. 165, not as a curative amendment
but as an independent Act . . . .”).
15
person.” If the court determined that the defendant was a “criminal sexual psychopathic
person,” it was to “commit such person to the state hospital commission to be confined in
an appropriate state institution under the jurisdiction of either the state hospital
commission or the department of corrections until such person shall have fully and
permanently recovered from such psychopathy,” as determined by petitioning the circuit
court and after a jury trial. 1939 PA 165, §§ 5 and 7; see In re Rowan, 305 Mich. 231; 9
NW2d 528 (1943) (holding that an individual committed under the statute was entitled to
a jury trial). A person found to be a criminal sexual psychopathic person could not later
“be tried upon the offense with which he originally stood charged in the committing court
at the time of the filing of the original petition.” 1939 PA 165, § 8.
The constitutionality of the second Goodrich Act was upheld in People v
Chapman, 301 Mich. 584; 4 NW2d 18 (1942). We distinguished the 1939 legislation
from that which preceded it by noting that the earlier legislation was
placed in the criminal-code chapter relating to judgments and sentences in
criminal cases. The present statute is not contained in either the code of
criminal procedure or the penal code. It makes sex deviators subject to
restraint because of their acts and condition, and not because of conviction
and sentence for a criminal offense. It does not extend or impose an added
or different sentence under the guise of hospitalization. The procedure
under this statute resembles a statutory inquest for the commitment of an
insane person accused of a felony. Proceedings under the present statute
are not criminal in nature and, therefore, are not circumscribed by the
constitutional and statutory limitations surrounding a person accused of, or
tried for, a crime. [Id. at 602-603 (citation omitted).]
See also People v Piasecki, 333 Mich. 122, 142; 52 NW2d 626 (1952) (noting that
proceedings to indefinitely commit a criminal sexual psychopathic person were “wholly
separate and apart from proceedings under the criminal law of the State”).
16
3. SEXUAL DELINQUENCY
The actual sexual-delinquency scheme we interpret in this case was, in turn,
adopted because of dissatisfaction with the second Goodrich Act. In 1949, then-
Governor G. Mennen Williams appointed a committee, which named itself the
“Governor’s Study Commission on the Deviated Criminal Sex Offender.” It “felt that the
so-called ‘Goodrich Act’ was merely stop-gap legislation passed hastily at the time of
some sex murders in the 1930s,” and recommended a variety of amendments to the
scheme, only some of which were adopted as 1950 (Ex Sess) PA 25. See Report of the
Governor’s Study Commission on the Deviated Criminal Sex Offender (1951), p 120.
Yet the Commission “d[id] not consider even [that] amended Act to be the ultimate
legislation . . . .” Id. at 120. The Commission faulted the Goodrich Act for being
“dependent upon a finding of a specific type of mental disorder which must be defined in
the legislation,” which was “particularly vexatious because it represent[ed] an attempt to
write into law a medically determined condition.” Id. at 129. Moreover, the Commission
thought it was a problem under the Goodrich Act “that some designated person—the
prosecuting attorney, attorney general, defense counsel, or other person with knowledge
of the facts—must prepare a special petition in order to start the commitment
proceedings.” Id. at 130. The Commission preferred that “[t]he option of indefinite
commitment with treatment present[] itself automatically upon conviction, so that
intermediate determinations by third parties are avoided.” Id. at 131.
The Commission “ma[de] a careful study of the statutory treatment of the sex
deviation problem by other States.” Id. at 121. It ultimately “recommend[ed] the general
theory recently developed by New York as the basic reform.” Id. at 124. The
17
centerpiece of this reform was making “[c]ertain more serious sex offenses . . .
punishable by either a sentence of imprisonment for a fixed minimum and maximum
number of years or an indeterminate sentence of imprisonment for one day to life.” Id.
The repeated references to “one day to life” in the report make clear that other sentences
(such as “two days to life” or some such) were not intended. See, e.g., id. at 134 (“[T]he
Committee recommends that the alternative indeterminate sentence of one day to life be
applied to several sex offenses which were not included within the program of the State
of New York.”); id. at 136 (“The Committee re-emphasizes that the alternative
indeterminate sentence of one day to life is not designed as a method of punishment. It is
merely a technical method of obtaining indefinite commitments so that the convicted sex
offender may be segregated as long as necessary to protect the public and to provide for
rehabilitation for his own protection and well-being.”). See also Thurber, A Twentieth
Century Program for the Sex Offender Problem, 15 U Det L J 1, 8 (1951) (“Under the
Commission plan an indeterminate sentence of one day to life (the wording of the
sentence as imposed would be ‘which shall have a minimum of one day and a maximum
of life’) would be added to the options . . . .”). The Commission also “believe[d] that the
adoption of this program for the disposition of the convicted sex offender, in conjunction
with other recommendations of the Committee, would eliminate the need for Michigan’s
‘Goodrich Act.’ ” Governor’s Commission Report, p 141.
In the end, the Legislature adopted a revised version of the program recommended
by the Governor’s Study Commission, which became our current sexual-delinquency
18
regime. Certain recommendations were rejected.15 For example, the “1 day to life”
option is available only for “sexually delinquent persons” as defined in MCL 750.10a,
leaving in place some of the definitional issues that came with characterizing a defendant
as a “criminal sexual psychopathic person.” The charging procedure in MCL 767.61a
“provide[s] for a double charge for an offense committed by a sexually delinquent
person,” requiring “[t]he indictment [to] charge (1) the offense [and] (2) that at the time
the offender was a sexually delinquent person,” Interim Report, 2 1958 Senate Journal at
1023, leaving in place the need for a special allegation to begin commitment proceedings.
Moreover, notwithstanding the Commission’s recommendation, the Legislature did not
repeal the Goodrich Act, “because the statute was regarded as a useful prosecution tool
for forcing the confinement and treatment of certain varieties of sex offenders.” Interim
Report, 5 1967 House Journal at 119. It is apparent, in other words, that the
Commission’s recommendations do not speak for the Legislature’s ultimate legislative
action.
That said, it is equally clear that the Legislature did take some action consistent
with the Commission’s recommendations. First and foremost, the Michigan Penal Code
was amended to include the “1 day to life” sentencing option for several crimes,
including indecent exposure:
Any person who shall knowingly make any open or indecent
exposure of his or her person or of the person of another shall be guilty of a
misdemeanor, punishable by imprisonment in the county jail for not more
than 1 year, or by a fine of not more than $500.00, or if such person was at
15
One legislative report said “[i]t emerged from the legislative hopper, amended so as to
be unworkable . . . .” Interim Report, 2 1958 Senate Journal at 1023.
19
the time of the said offense a sexually delinquent person, may be
punishable by imprisonment in the state prison for an indeterminate term,
the minimum of which shall be 1 day and the maximum of which shall be
life . . . . [1952 PA 73.]
Moreover, the statute governing the Department of Corrections was amended to provide
for how to handle individuals given this alternate sentence:
Sec. 33a. As soon as possible after a commitment and at intervals
not to exceed 6 months thereafter during the term of each prisoner
sentenced to an indeterminate term of a minimum of 1 day and a maximum
of life, the parole board shall cause to be brought before it, with respect to
such prisoner, a copy of the pre-sentence probation report . . . to assist the
board in its determination of the granting or refusal of parole at that
time . . . .
Sec. 36a. The following shall apply to those persons paroled from a
sentence of from 1 day to life . . . .
Sec. 40a. Whenever in the opinion of the parole board, upon
consideration of the record and condition of a prisoner sentenced to an
indeterminate term of a minimum of 1 day and a maximum of life, . . . it
shall appear that such prisoner is no longer a sexually delinquent person,
the board may enter an order of final discharge . . . .
Sec. 40b. Upon the failure of the parole board to grant to any
prisoner, not on parole, sentenced to an indeterminate term of a minimum
of 1 day and a maximum of life, an unconditional discharge, but in no case
sooner than 3 calendar years after commitment, nor more often than every 5
calendar years thereafter, said prisoner, by himself or through counsel, shall
have the right to petition to the sentencing court for a hearing or trial. . . . If
the court or the jury finds by a preponderance of the evidence that such
prisoner is no longer a sexually delinquent person, the court shall order his
unconditional discharge; otherwise, such prisoner shall forthwith be
returned to the custody of the state department of corrections. [1952 PA
72.]
Not long after this scheme was adopted, the Legislature began chipping away at it.
The provisions regarding how the Department of Corrections was to specially process
individuals given “1 day to life” sentences were not retained when the Corrections Code
20
was adopted. See 1953 PA 232. The Goodrich Act itself was repealed. 1968 PA 143.
The Legislature also withdrew the ability to sentence defendants to “1 day to life” for
several crimes. See 1974 PA 266. Thus, “sexual delinquency is now limited to five
specific criminal provisions, three of which arise from the same criminal conduct,”
Helzer, 404 Mich. at 422—the five offenses being (1) sodomy, MCL 750.158, (2)
indecent exposure, and (3) gross indecency between (a) two males, MCL 750.338, (b)
two females, MCL 750.338a, or (c) between a male and a female, MCL 750.338b.
IV. ANALYSIS
A. SEXUAL-DELINQUENCY SENTENCING BEFORE THE GUIDELINES
As noted, the threshold question we must address is what the proper interpretation
of the sexual-delinquency scheme was before the sentencing guidelines were adopted in
1998. This, in turn, has three components: first, whether the “1 day to life” sentence was
optional or mandatory for defendants who qualified for it; second, whether the “1 day to
life” sentence was a range within which a judge could sentence and thus could be
modified, or whether it was nonmodifiable; and third, what effect the ban in MCL
769.9(2) on so-called “life tails” has on the “1 day to life” scheme.
1. OPTIONAL VS. MANDATORY
As has been noted, the basic functioning of the sexual-delinquency scheme is that
certain sex offenses are identified as being eligible for different treatment if the defendant
is accused and convicted of having been a “sexually delinquent person” at the time of the
offense. The procedure that is common to all these offenses is laid out in MCL 767.61a,
which characterizes the “1 day to life” sentence as “an alternate sentence.” The question
21
we confront is whether this is a mandatory alternative or an optional alternative. We
conclude that the best reading is to construe it as an optional alternative.
The adjective “alternate” is defined as “[s]erving or used in place of another;
substitute[.]” American Heritage Dictionary of the English Language (5th ed), def 3.
But the dictionary offers a cross-reference to the usage note for “alternative,” which notes
that “[a]s an adjective, alternative can mean ‘allowing or requiring a choice between two
or more things,’ ” but it “may also refer to a variant or substitute in cases where no choice
is involved . . . .” Thus, when road construction is going to make an arterial highway
unavailable, authorities advise motorists to “seek alternate routes,” because the usual
route can no longer be chosen. This usage coexists with the notion of “alternate” as
optional, such as deciding which of two alternate routes will get the motorist to their
destination faster. Which meaning is intended here?
We believe the better reading of the scheme construes the “alternate sentence” as
optional. Consider that, in 1952 PA 73, the Legislature provided that indecent exposure
was “punishable by imprisonment in the county jail for not more than 1 year” and, if
committed by a sexually delinquent person, “may be punishable by imprisonment in the
state prison for an indeterminate term, the minimum of which shall be 1 day and the
maximum of which shall be life[.]” The word “punishable” is defined as “liable to
punishment; capable of being punished.” Oxford English Dictionary (2d ed).16 The word
expresses only the potential for punishment, not its necessity, meaning that either up to a
16
See also Black’s Law Dictionary (4th ed), which was published in 1951 and defined
“punishable” as “[d]eserving of or capable or liable to punishment; capable of being
punished by law or right.”
22
year in jail or a “1 day to life” sentence were possibilities. This conclusion is further
strengthened by the fact that the statute said that, when dealing with a sexually delinquent
person, the offense “may be” punishable by a “1 day to life” sentence. It is well
established that the use of the word “may” is ordinarily permissive. See Browder v Int’l
Fidelity Ins Co, 413 Mich. 603, 612; 321 NW2d 668 (1982) (“[C]ourts should give the
ordinary and accepted meaning to . . . the permissive word ‘may’ . . . .”); see also Allen v
Carpenter, 15 Mich. 25, 43-44 (1866) (“The provision . . . is permissive in its form, and
only declares that all such tenancies may be thus terminated[.]”); Largy v Holland, Blume
Unrep Op 129, 132 (Mich, 1842) (“The language . . . of the 10th [statutory section is]
permissive, ‘The award may be returned . . . .’”). Moreover, the Legislature is certainly
capable of adopting nondiscretionary sentences. See, e.g., MCL 750.227b(1) (“A person
who carries or has in his or her possession a firearm when he or she commits or attempts
to commit a felony . . . shall be punished by imprisonment for 2 years.”). Even if, as a
matter of general English usage, “alternate” can in some contexts refer to a mandatory
alternative, we do not conclude that the Legislature was using it in this mandatory fashion
here when it deliberately chose not to use the sort of mandatory language it ordinarily
uses when it wants to preclude other sentencing options.
Construing the “alternate sentence” for sexually delinquent persons as entirely
optional is also more consistent with the broader law of sentencing in Michigan when the
sexual-delinquency scheme was adopted. At that time, “appellate review of sentences . . .
included [only] the procedural consideration of how the defendant was sentenced as well
as a consideration of whether the substance of the sentence was statutorily or
constitutionally permissible.” People v Coles, 417 Mich. 523, 532; 339 NW2d 440
23
(1983). See also Lockridge, 498 Mich. at 415 n 8 (MARKMAN, J., dissenting) (“Michigan
initially had a purely indeterminate sentencing scheme, in which the judge possessed
unfettered judgment to sentence a defendant anywhere between no jail time and
imprisonment in the amount of the statutory maximum.”). It was not until Administrative
Order No. 1983-3, 417 Mich. cxxi (1983), that we went so far as to “invite[], but not
require[],” trial judges to use sentencing guidelines. And when we did make them
mandatory, Administrative Order No. 1984-1, 418 Mich. lxxx (1984); Administrative
Order No. 1985-2, 420 Mich. lxii (1985), indecent exposure by a sexually delinquent
person was not included in the scheme, Michigan Sentencing Guidelines (1988), p 13. In
other words, before the statutory sentencing guidelines’ enactment, a judge faced with an
adjudicated sexual delinquent guilty of indecent exposure could choose any legally
available sentencing option the judge deemed appropriate.
Construing the “1 day to life” option as an alternative, which the trial court was
free to consider alongside an ordinary criminal sentence of up to one year in jail, is also
supported by the history of the sexual-delinquency scheme. As the Governor’s Study
Commission said:
It is also important to state the possible alternatives which will be
available to the court upon conviction of a sex offender. The alternative
one day to life sentence would be but one additional method of disposition
in a particular case. At present, the court may sentence the convicted sex
offender to a prison term with a fixed minimum and maximum number of
years; the court may suspend sentence; it may impose a fine; or it may
place the offender on probation. These present alternatives would continue.
In addition, the court would have the power under the new sentence to
protect the community adequately and to provide treatment and
rehabilitation for the offender. [Governor’s Commission Report, p 137.]
24
See also Twentieth Century Program, 15 U Det L J at 8 (stating that the indeterminate
sentence option “would be added to the options already available to courts of record
when the latter are confronted with a convicted or confessed sex offender” even while
“[a]ll present options remain unimpaired”); Bennett, Proposed Additional Means of
Dealing with Sex Offenders, 30 Mich St B J 28, 32 (1951) (stating that the scheme would
provide for the “[a]ddition of an alternative sentence of one day to life . . . in the
discretion of the court”).
In light of all of these considerations—the text of the statutory scheme, the
Legislature’s usual pattern in clearly identifying mandatory sentences, the relation this
scheme would have had to the overarching law of sentencing at the time the scheme was
adopted, and the history of the scheme—we conclude that Kelly correctly construed the
“1 day to life” alternate sentence as an option a sentencing judge could draw upon,
alongside and not to the exclusion of other available options.
2. MODIFIABLE VS. NONMODIFIABLE
Having concluded that Kelly correctly construed “1 day to life” as an option, we
must also determine what the parameters of that option were. The “1 day to life” option
was said in MCL 767.61a to be punishable by an indeterminate term, “the minimum of
which is 1 day and the maximum of which is life . . . .” But did this mean that the
minimum the judge could choose from was 1 day, and the maximum the judge could
choose from was life? Or did it mean that, if the judge chose to sentence under the “1 day
to life” scheme, the sentence could be nothing other than precisely “1 day to life”?
25
We believe that the better reading of the scheme is that “1 day to life” was not
modifiable. Consider that 1952 PA 73 said that, while indecent exposure by a sexually
delinquent person may be punishable by a special indeterminate sentence, it also said that
if such a sentence was imposed, “the minimum of [the term] shall be 1 day and the
maximum of [the term] shall be life.” The use of the word “shall” suggests that a trial
court had no discretion to further modify the terms of the sentence, because if it chose to
avail itself of the special indeterminate sentence, it had to sentence according to the
special sentence’s terms. See Smith v Sch Dist No 6, 241 Mich. 366, 369; 217 N.W. 15
(1928) (“By the use of the word ‘may’ in the first section, the Legislature authorized and
permitted the board of education to come under the provisions of the act if it so desired.
By the use of the word ‘shall’ in the other portions of the act it was the legislative intent
that if the board of education adopted the act, then such other provisions became
mandatory and the board of education became bound to follow and enforce them. In
other words, districts ‘may’ come under the provisions of the act. If they do its
provisions ‘shall’ be followed.”). Moreover, MCL 767.61a characterized “1 day to life”
as an “alternate” sentence, which indicates that it ought to function in some distinct way.
Consider that MCL 769.12(1)(c) allows a fourth-offense habitual offender who has
committed a less-than-5-year felony to be sentenced to a maximum of up to 15 years;
would we characterize the up-to-15-year sentence as an “alternate sentence” to the
ordinary sentence? Certainly not, because it works no differently, but is simply more of
the same.
Again, the history of the enactment of the sexual-delinquency scheme further
supports this conclusion. While 1952 PA 72 has since been repealed, it was adopted
26
contemporaneously with the sexual-delinquency scheme, and it directed the DOC on how
to process “persons paroled from a sentence of from 1 day to life[.]” 1952 PA 72, § 36a.
There are no instructions for how to process persons paroled from a sentence of, for
example, 2 days to life. This Court’s statements in Helzer further confirm the
nonmodifiable nature of the “1 day to life” option. There, the Court of Appeals had
“found sexual delinquency to be . . . simply a penalty enhancement provision related to
the principal gross indecency charge,” an interpretation we rejected because the scheme
“reflects legislative intent to construe sexual delinquency as a separate, alternate form of
sentencing.” Helzer, 404 Mich. at 419.
Construing “1 day to life” as being nonmodifiable is also consistent with the
history of the sexual-delinquency scheme, which was clearly intended to be therapeutic
and open-ended. It is apparent that the sexual-delinquency scheme was adopted as a
further refinement of the preexisting “Goodrich Act,” and it viewed sexual delinquency
as a form of mental illness for which an offender would receive treatment. See, e.g.,
Twentieth Century Program, 15 U Det L J at 8 (“The heart of the Commission program is
the introduction of a true indeterminate sentence in the disposition of offenders convicted
of sex crimes” which was “already approximated in the indeterminate commitments had
under Michigan’s present sex-psychop[a]th law.”) (emphasis added). The purpose of the
scheme was to create a different sentencing option, one in which the judge gave up
control over the amount of time the defendant served to experts who would assess when
the defendant was well enough to rejoin society.
27
Once again, in light of all of these considerations—the text of the scheme, its
history as an evolution of the older Goodrich Act, and its apparent purpose—we conclude
that Kelly correctly interpreted the “1 day to life” sentencing option as nonmodifiable.
3. “1 DAY TO LIFE” AND MCL 769.9(2)
Finally, we agree with Kelly that the “1 day to life” sentencing scheme is an
exception to the indeterminate sentencing statute’s ban on so-called “life tails,” MCL
769.9(2). First, textually, MCL 769.9(2) applies only to “cases where the maximum
sentence in the discretion of the court may be imprisonment for life or any number or
term of years . . . .” The phrasing “life or any term of years” is used verbatim in a variety
of statutes. See, e.g., MCL 750.72(3) (stating that first-degree arson is a felony
“punishable by imprisonment for life or any term of years”); MCL 750.85(1) (same for
torture); MCL 750.136b(2) (same for first-degree child abuse). When MCL 750.335a
was adopted, it spoke of “imprisonment in the state prison for an indeterminate term, the
minimum of which shall be 1 day and the maximum of which shall be life,” 1952 PA 73,
and MCL 767.61a speaks of “an indeterminate term, the minimum of which is 1 day and
the maximum of which is life . . . .” On its own, this difference in wording may be
enough to remove sexual-delinquency cases from MCL 769.9(2). Moreover, we agree
with Kelly that because MCL 769.9(2) is a general indeterminate sentencing statute,
while the sexual-delinquency scheme is a specific, integrated scheme, the more specific
statute controls. “When a general intention is expressed, and also a particular intention,
which is incompatible with the general one, the particular intention shall be considered an
28
exception to the general one.” Attorney General ex rel Owen v Joyce, 233 Mich. 619,
624; 207 N.W. 863 (1926) (quotation marks and citation omitted).
In short, we construe the “1 day to life” sentence that the Legislature adopted in
1952 as being an alternative sentencing option that existed alongside other options, such
as a life sentence or a term of years. Much as “[t]he sentence concepts ‘life’ and ‘any
term of years’ are mutually exclusive and a sentencing judge may (in the appropriate
case) opt for either but not both,” People v Johnson, 421 Mich. 494, 498; 364 NW2d 654
(1984), so “1 day to life” was a mutually exclusive concept that a sentencing judge was
free to opt for to the exclusion of a life- or term-of-years sentence.
B. RAMIFICATIONS OF AFFIRMING KELLY
There are a few consequences for other areas of our caselaw that flow from our
conclusion that Kelly correctly construed “1 day to life” as a nonmandatory option that a
trial court could draw upon should it choose to exercise its discretion to do so. First, in
People v Butler, 465 Mich. 940, 941 (2001), we said that “there is no alternative to the
mandatory indeterminate sentence of one day to life in prison where the trial court
chooses to incarcerate a person convicted under MCL 750.335a and MCL 750.10a.” This
was incorrect. As we have held, “1 day to life” was not a mandatory sentence even when
the trial court chose to incarcerate the defendant.17 Nor has any aspect of the legislative
sentencing guidelines purported to make “1 day to life” mandatory.
17
In similar fashion, in People v Murphy, 203 Mich. App. 738, 745; 513 NW2d 451
(1994), the Court of Appeals said that the sexually delinquent person scheme’s “alternate
sentencing provisions . . . instructed the judge that the Legislature considered one day to
life to be the correct sentence for the principal offense.” Insofar as this suggested that “1
day to life” was the mandatory sentence the trial court was obliged to impose, it was
29
Second, we must revisit our decision in Buehler III, which we now recognize was
based on a flawed initial premise about the sexual-delinquency scheme. In that case, the
defendant was convicted of indecent exposure by a sexually delinquent person and had a
minimum sentencing range of 42 to 70 months’ imprisonment under the guidelines. The
trial court, however, departed from that recommendation and imposed a sentence of 3
years’ probation. The prosecutor initially moved for resentencing, arguing that the trial
court was obliged to sentence the defendant to “1 day to life.” The trial court denied the
motion. On appeal, the prosecutor shifted to arguing that the trial court had not
articulated adequate reasons to depart from the guidelines. The Court of Appeals initially
reasoned much as we have in this opinion. See People v Buehler (Buehler I), 268 Mich
App 475; 710 NW2d 55 (2005). It concluded that, “regardless of whether the term of any
indeterminate prison sentence imposed by a trial court is controlled by the statutory
sentencing guidelines or the more exacting language of MCL 750.335a, the plain,
unambiguous language of MCL 750.335a indicates that such a sentence is merely an
alternative to the determinate jail sentence or fine generally available for a conviction
under MCL 750.335a.” Id. at 480. The panel went on to conclude that probation is an
additional punishment available to the trial court under the language in MCL 767.61a
giving the trial court the ability to “impose any punishment provided by law,” and
affirmed the trial court’s decision. Id. at 482-483.
On the prosecutor’s appeal to this Court, we vacated the decision of the Court of
Appeals and remanded for consideration of “whether any term of imprisonment that may
wrong.
30
be imposed by the circuit court is controlled by the legislative sentencing guidelines or by
the indeterminate sentence prescribed by MCL 750.335a,” as well as whether the trial
court offered adequate justification to depart from the guidelines. People v Buehler, 474
Mich. 1081 (2006). On remand, the Court of Appeals concluded that the trial court had
not articulated adequate reasons to depart from the guidelines. Buehler II, 271 Mich. App.
at 656. As to whether MCL 750.335a or the statutory guidelines controlled, the Court of
Appeals felt that MCL 750.335a “plainly require[d] that any term of imprisonment
imposed for a conviction of indecent exposure as a sexually delinquent person be for a
period of one day to life.” Id. at 657. Because the guidelines “require[d] imposition of a
sentence consistent with a minimum guideline range that will vary with the circumstances
surrounding each particular offense and offender, and MCL 750.335a expressly
require[d] a definitive sentence of one day to life, there c[ould] be no construction that
wholly avoid[ed] conflict between these two statutes.” Id. at 658. The panel concluded
that the guidelines, as the more recently enacted legislation, should control. However,
the Court of Appeals reiterated that probation was a lawful sentence that the trial court
could impose under MCL 767.61a and reaffirmed the trial court. The panel noted that it
expressed no opinion on the effect of 2005 PA 300 on the case because it was adopted
after the defendant’s criminal conduct. Buehler II, 271 Mich. App. at 654 n 1, 659 n 4.
On appeal again to this Court, we reversed the Court of Appeals decision. Buehler
III, 477 Mich. at 28. We observed that indecent exposure by a sexually delinquent person
was a listed felony in the guidelines, and we concluded that the trial court was obliged to
impose a sentence within the appropriate guidelines range in the absence of a substantial
and compelling reason to depart. We “agree[d] with the Court of Appeals that the trial
31
court in th[at] case failed to state substantial and compelling reasons for a departure,”
Buehler III, 477 Mich. at 24, meaning that the “defendant’s sentence [was] invalid under
the sentencing guidelines,” id., and we faulted the Court of Appeals for “not end[ing] its
analysis at that point,” id. at 25.
Both panels held that courts may avoid the guidelines for any
probationable felony. The probation statute and the sentencing guidelines
must be construed together because “statutes that relate to the same subject
or that share a common purpose are in par[i] materia and must be read
together as one.” When there is a conflict between statutes that are read in
par[i] materia, the more recent and more specific statute controls over the
older and more general statute. Significantly, the panel in Buehler II found
that MCL 750.335a and the sentencing guidelines were in par[i] materia
and that the more recently enacted guidelines control. Unfortunately,
neither panel applied the same analysis to the probation statute and the
sentencing guidelines. The sentencing guidelines were enacted after the
probation statute, and they are more specific in that they provide a detailed
and mandatory procedure for sentencing involving all enumerated crimes.
Therefore, the sentencing guidelines control for a crime that could be
punished under the guidelines or with probation. [Id. at 26-27.]
Because probation was a departure from the guidelines range and the trial court had not
articulated substantial and compelling reasons to depart from the range, we reversed the
Court of Appeals and remanded to the trial court for resentencing. Id. at 28. We also
stated that we had no opinion of the effect of 2005 PA 300 on the case. Id. at 24 n 18.
Our close analysis of the sexual-delinquency scheme in this case reveals that
Buehler did not appreciate the nature of the “1 day to life” sentence and the tension
between it and the sentencing guidelines. For example, in our remand order to the Court
of Appeals in Buehler, we directed the Court to compare the guidelines against “the
indeterminate sentence prescribed by MCL 750.335a.” Buehler, 474 Mich. at 1081. But
our conclusion here that Kelly was rightly decided indicates that MCL 750.335a did not
32
prescribe anything; instead, it only made an option available. Buehler also presumed that
the trial court’s deviation from the sentencing guidelines should have been the end of that
case’s analysis. But at least until the adoption of the sentencing guidelines, no sentence
on the Class A sentencing grid would even have been legal for a judge to impose on a
sexually delinquent person who was found guilty of indecent exposure. Buehler did not
consider whether the adoption of the legislative sentencing guidelines could make legal a
sentence that would not otherwise have been legal before the guidelines were adopted.
Of course, in some respects Buehler III’s holding is now irrelevant, because trial
courts need not express substantial and compelling reasons to depart downward after
Lockridge. But here, the Court of Appeals relied on Buehler III’s treatment of the sexual-
delinquency scheme alongside the sentencing guidelines to reach its conclusion. We no
longer regard Buehler III as a binding statement of the proper interpretation of these
statutes.
V. APPLICATION
Having concluded that the sexual-delinquency scheme created only an optional “1
day to life” sentence that trial courts were free to select alongside the other sentencing
remedies available to them, we now turn to the case at hand. The panel here simply
relied on Campbell, which it was bound to do, MCR 7.215(J)(1), so we turn our attention
to Campbell.
In Campbell, the defendant was convicted of six counts of indecent exposure by a
sexually delinquent person. The trial court sentenced him to 35 to 82 years in prison.
Campbell, 316 Mich. App. at 281. On appeal, the defendant argued “that the trial court
33
did not have the discretion to determine a minimum and maximum sentence under the
sentencing guidelines” because, in light of Lockridge’s holding “that the sentencing
guidelines are advisory, . . . trial courts are required to sentence a person convicted of
indecent exposure as a sexually delinquent person to serve one day to life in prison.”
Campbell, 316 Mich. App. at 297. The panel characterized the issue as “whether MCL
750.335a or the statutory sentencing guidelines control[led] Campbell’s sentence . . . .”
Id. at 298. It noted that the Court of Appeals and this Court had stated in Buehler II and
Buehler III that they had no opinion on the effect of 2005 PA 300. Id. The Court then
said:
Campbell argues that the change in statutory language [due to 2005
PA 300] from “may be punishable” to “is punishable” indicates that the
Legislature intended that the indeterminate sentence of one day to life be a
mandatory sentence, notwithstanding the sentencing guidelines.
We agree that the conflict between the statutory language provided
under MCL 750.335a(2)(c) and the sentencing guidelines, MCL 769.34,
must now be resolved in favor of applying MCL 750.335a(2)(c). Our
Supreme Court has determined that the sentencing guidelines were
unconstitutional to the extent that the guidelines required trial courts to
determine a defendant’s minimum sentence on the basis of facts “beyond
those admitted by the defendant or found by the jury beyond a reasonable
doubt . . . .” People v Lockridge, 498 Mich. 358, 364; 870 NW2d 502
(2015). Although the Supreme Court determined that the guidelines should
still be scored by trial courts, it nevertheless held that trial courts are no
longer required to sentence a defendant to a minimum sentence within the
range provided by the guidelines—that is, the guidelines are now merely
advisory. Id. at 365. By contrast, the sentence provided under MCL
750.335a(2)(c) is stated in mandatory terms. Consequently, after the
decision in Lockridge, trial courts must sentence a defendant convicted of
indecent exposure as a sexually delinquent person consistently with the
requirements of MCL 750.335a(2)(c). [Id. at 299-300.]
34
In light of our conclusions in this case, Campbell’s reasoning cannot stand. First,
MCL 750.335a(2)(c) is not “stated in mandatory terms.” When adopted, it said that a
sexually delinquent person who committed indecent exposure “may be punishable . . . for
an indeterminate term, the minimum of which shall be 1 day and the maximum of which
shall be life.” 1952 PA 73. After 2005 PA 300, it now says that indecent exposure by a
sexually delinquent person “is punishable . . . for an indeterminate term, the minimum of
which is 1 day and the maximum of which is life.” In our view, this change in wording
has no effect on the meaning of the statute and is merely stylistic. While “a change in the
language of a prior statute presumably connotes a change in meaning,” “[t]his
presumption does not apply to stylistic or nonsubstantive changes.” Scalia & Garner,
Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 256.
Cf. id. at 114 (“[T]here has been a movement in recent years to rewrite the federal
rules—appellate, criminal, civil, evidence—to remove all the shalls and otherwise restyle
them. . . . Each shall became must, is, or may.”) After all, MCL 750.335a(2)(c) still says
only that the offense is punishable by a “1 day to life” sentence, and “punishable”
expresses only the possibility of punishment, not its necessity. Moreover, MCL 767.61a
has not been amended, meaning that it still characterizes “1 day to life” as an “alternate”
sentence, not a mandatory sentence. Indeed, MCL 767.61a has always phrased the
indeterminate sentence option in the same fashion as the postamendment version of MCL
750.335a: “the minimum of which is 1 day and the maximum of which is life.” And
MCL 767.61a lays out a procedure common to all five sexual-delinquency crimes, yet
each of the other four still uses the former “may be punishable” and “shall be 1
day . . . shall be life” wording. The sexual delinquency alternative sentence is obviously
35
intended to work the same for all five offenses, so if it is optional for the others, it must
still be optional for indecent exposure. All signs point to the 2005 amendment adding
only the aggravated indecent-exposure offense and making no substantive changes to the
“1 day to life” alternative sentence.18
Second, we do not believe that Lockridge has the significance ascribed to it by the
Court of Appeals in Campbell. Lockridge concluded that the scoring process for the
legislative sentencing guidelines violated the Sixth Amendment and, as a remedy for that
constitutional violation, directed that henceforth the guidelines would be only advisory.
Neither identifying that problem nor crafting that remedy illuminates whether the
adoption of the sentencing guidelines and the classification of indecent exposure by a
sexually delinquent person as a Class A felony could make legal a sentence that would
not have been legal before the sentencing guidelines were adopted. Whether the
sentencing guidelines are mandatory or merely advisory is neither here nor there; the
question is what effect the legislative act of adopting the guidelines had on the sexual-
delinquency scheme.
18
While not dispositive, we also note that the pertinent legislative analysis does not even
allude to an intent to make substantive changes to the meaning of the “1 day to life”
option. See House Legislative Analysis, HB 4597 (August 16, 2006). While legislative
analyses “are entitled to little judicial consideration,” In re Certified Question, 468 Mich.
at 115 n 5 (2003), it is also true that the Legislature “does not, one might say, hide
elephants in mouseholes,” Whitman v American Trucking Ass’ns, 531 U.S. 457, 468; 121 S
Ct 903; 149 L. Ed. 2d 1 (2001). It seems unlikely that such a sea change in the law of
indecent exposure, rendering its relationship with the rest of the sexual-delinquency
scheme different from all the other sexually-delinquent-person crimes, would go without
mention.
36
Third and finally, we no longer believe Buehler III fully understood the nature of
the sexual-delinquency scheme. Its embrace of a vision of dueling mandates between
MCL 750.335a and the sentencing guidelines misconstrued the nature of the “1 day to
life” sentencing option provided by MCL 750.335a and MCL 767.61a. It appears that the
Court of Appeals in the instant case relied on the series of Buehler decisions, in particular
their caveat that the 2005 PA 300 amendment of MCL 750.335a may have been
meaningful, in reaching its decision. By contrast, we have now concluded that the 2005
PA 300 amendment made no meaningful textual adjustment to the statute.
For all these reasons, Campbell must be set aside. However, given the
significance of this decision, in which we are pointedly embracing Kelly,19 overruling
Butler, and disavowing Buehler, we believe that it is consonant with judicial modesty to
remand this matter to the Court of Appeals for reconsideration in light of the revised state
of the law. On remand, the Court of Appeals should resolve what effect the adoption of
the legislative sentencing guidelines had on the operation of the sexual-delinquency
scheme as we have construed it before the guidelines were adopted. We leave it to the
parties and the Court of Appeals to decide what questions must be addressed to resolve
19
We note that Kelly did not acknowledge the possibility of probation when it said that
the trial court had the choice of an up-to-1-year sentence, a fine of up to $500, or a “1 day
to life” sentence. This may have been because the judge imposed a life sentence in Kelly,
meaning probation was apparently not a plausible consideration. Even while endorsing
Kelly in certain respects, we express no opinion on the role of probation in sexual-
delinquency sentencing.
37
that issue.20 This will best allow the strongest arguments to be developed as to what rule
should apply to this defendant and future defendants.
VI. CONCLUSION
As noted, we believe that Kelly correctly construed the sexual-delinquency “1 day
to life” scheme, as an option a trial court could use its discretion to consider imposing
alongside the other statutory penalties available under the statute (at that time, up to 1
year in jail, which was expanded by 2005 PA 300 to be as much as 2 years in prison for
aggravated indecent exposure). We hold that the switch in 2005 PA 300 from “may be
20
We note certain questions that may be helpful but are not necessarily dispositive in
resolving on remand the effect of the legislative sentencing guidelines on the sexual-
delinquency scheme. For example, MCL 777.16 says that the sentencing guidelines
apply “to felonies enumerated in [the Penal Code] as set forth in sections 16a to 16bb of
this chapter.” Given our interpretation of the offense, is indecent exposure by a sexually
delinquent person a distinct felony “enumerated” in the Penal Code? (While we conclude
that the change in language from 2005 PA 300 is immaterial, could its reorganization of
MCL 750.335a constitute making this a distinct offense “enumerated” by the Penal Code
if it was not before, or was this a mere stylistic change to improve readability?) Does it
matter if indecent exposure by a sexually delinquent person is “enumerated” in the Penal
Code, given that the offense is “set forth” in MCL 777.16q as a listed felony? (If it does
not matter, what is the function of MCL 777.16, or is it surplusage?) If many of the
sentences provided for in the Class A sentencing grid, MCL 777.62, would not have been
legal for this offense under the Penal Code (including the sentence defendant received),
can such sentences be made legal because the offense is listed in the Code of Criminal
Procedure as a Class A felony? That is to say, where, as here, the legislative sentencing
guidelines provide for a penalty that contradicts the penalty provided in the Penal Code
for an offense, are the sentencing guidelines an amendment (or repeal) of inconsistent
provisions of the Penal Code by implication such that the guidelines control? If so, are
there any constitutional problems with such an arrangement; for example, does it comport
with Const 1963, art 4, § 25? Are our decisions in Frontczak and Boulanger, dealing
with the first Goodrich Act, relevant to answering these questions, or distinguishable? Is
the rule of lenity implicated? See People v Hall, 499 Mich. 446, 458 n 38; 884 NW2d
561 (2016).
38
punishable” to “is punishable,” and “the minimum of which shall be 1 day” to “the
minimum of which is 1 day,” and “the maximum of which shall be life” to “the
maximum of which is life,” is merely stylistic. We conclude that Lockridge’s
constitutional remedy is not pertinent to the outcome of this case. And we disavow
Buehler as having been premised on a misconception of the law of sexual delinquency.
In light of these conclusions, we set aside Campbell, vacate the opinion of the
Court of Appeals in the instant case, and remand the instant case to the Court of Appeals
to consider, in light of these rulings, what effect the adoption of the legislative sentencing
guidelines in 1998—and in particular, their classification of the instant offense as a Class
A felony—had on a trial court’s options in sentencing a defendant convicted of indecent
exposure by a sexually delinquent person.
Elizabeth T. Clement
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
39