O People of Michigan v. Armond Pinson ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
December 1, 2022
Plaintiff-Appellant, 9:00 a.m.
v No. 356624
Ottawa Circuit Court
ARMOND PINSON, LC No. 20-043663-FH
Defendant-Appellee.
ON REMAND
Before: GLEICHER, C.J., and K. F. KELLY and PATEL, JJ.
GLEICHER, C.J.
MCL 769.8(1) requires the imposition of an indeterminate sentence for first-time felony
offenses that are punishable by a term of imprisonment. Although other provisions of the
sentencing chapter of the criminal code permit courts to deviate from the sentencing guidelines
and to impose intermediate sanctions in lieu of a prison sentence, the trial court in this case did not
abide by those provisions. Instead, the court imposed an impermissible determinate six-month jail
term for a serious sexual offense. In People v Pinson, ___ Mich App ___; ___ NW2d ___ (2022)
(Docket No. 356624) (Pinson I), we vacated Armond Pinson’s sentence for this reason, but also
because MCL 769.31 no longer considers jailtime as an intermediate sanction. The Supreme Court
vacated Pinson I, because this statutory change did not take effect until after Pinson committed his
offense, entered a plea, and was sentenced. People v Pinson, ___ Mich ___; ___ NW2d ___ (2022)
(Docket No. 164465) (Pinson II). We continue to find error on other grounds cited in Pinson I.
Accordingly, we vacate Pinson’s sentence and remand for resentencing.
I. BACKGROUND
We succinctly outlined the factual and procedural background of this case in Pinson I, ___
Mich App at ___, slip op at 1-2, and readopt that recitation here.
In August 2017, 21-year-old Armond Pinson had sexual intercourse with 14-year-old TRH
on three occasions, once while the young girl was unconscious. When TRH informed Pinson that
she was pregnant, Pinson initially vowed to be there for mother and child. Realizing the criminality
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of his conduct, however, Pinson went back on his word and blocked TRH on all forms of
communication. After Pinson was proved to be the father of TRH’s baby, the prosecution charged
him with one count of third-degree criminal sexual conduct (CSC-III) in violation of MCL
750.520d(1)(a) (sexual penetration of a person between the ages of 13 and 16). Pinson pleaded
guilty as charged.
Pinson’s minimum sentencing guidelines range was originally calculated at 24 to 40
months, but the court agreed with the prosecutor that the correct, adjusted range was 21 to 35
months. The trial court departed from that range and imposed a six-month jail term rather than a
prison sentence with a minimum and maximum term. In doing so, the court noted that another
man had intercourse with TRH during the same timeframe and was not criminally charged. The
court further reasoned that Pinson suffered from a “terribly disabling” eye condition that required
“some special round-the-clock care,” including “drops and appropriate protection of the eye from
light sources.” The court opined that the prisons were not equipped to manage this care.
The prosecution sought resentencing, contending that the court was required to impose an
indeterminate sentence with a minimum and maximum term under MCL 769.8(1). Pinson, on the
other hand, relied on People v Martin, 257 Mich App 457; 688 NW2d 397 (2003), to support that
a six-month jail term was a permissible intermediate sanction. The court affirmed its sentence,
finding that the Legislature essentially left open an exception to MCL 769.8(1) for felony offenses
with sentencing grids that permitted intermediate sanctions. CSC-III is a Class B offense, MCL
777.63, and the Class B sentencing grid includes three straddle cells permitting intermediate
sanctions. And MCL 769.28 permits a sentence under a year to be served in jail unless there is a
provision of the law to the contrary. Accordingly, the court determined, the six-month jail term it
imposed was not in error.
II. ANALYSIS
Determining the propriety of the six-month jail term imposed in this case requires the
interpretation of several sentencing statutes.
In interpreting statutes, our goal is to give effect to the Legislature’s intent, focusing
first on the statute’s plain language. In doing so, we examine the statute as a whole,
reading individual words and phrases in the context of the entire legislative scheme.
When a statute’s language is unambiguous, the Legislature must have intended the
meaning clearly expressed, and the statute must be enforced as written. [People v
Calloway, 500 Mich 180, 184; 895 NW2d 165 (2017) (quotation marks and
citations omitted).]
Michigan has had an indeterminate sentencing statute in place since the enactment of 1903
PA 452. See People v McFarlin, 389 Mich 557, 568 n 10; 208 NW2d 504 (1973).1 MCL 769.8(1)
has provided at all relevant times:
1
As described by the Supreme Court,
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When a person is convicted for the first time for committing a felony and the
punishment prescribed by law for that offense may be imprisonment in a state
prison, the court imposing sentence shall not fix a definite term of imprisonment,
but shall fix a minimum term, except as otherwise provided in this chapter. The
maximum penalty provided by law shall be the maximum sentence in all cases
except as provided in this chapter and shall be stated by the judge in imposing the
sentence. [Emphasis added.]
CSC-III is “a felony” and “the punishment prescribed by law” for CSC-III is “imprisonment for
not more than 15 years.” MCL 750.520d(2). Accordingly, a sentence for CSC-III falls with the
parameters of MCL 769.8(1). An indeterminate sentence with a minimum and maximum term
must be imposed “except as otherwise provided in this chapter.” MCL 769.8(1).
MCL 769.34(3)(a) permits a court to “depart from the appropriate sentence range . . . if the
departure is reasonable and the court states on the record the reasons for the departure.” The trial
court and Pinson posit that a departure sentence of six months’ incarceration was appropriate in
this case because the sentencing grid for Class B offenses includes straddle cells that permit
intermediate sanctions. However, the plain language of MCL 769.8(1) still requires the imposition
of an indeterminate sentence with a set minimum and maximum term.
MCL 769.34(4) requires a court to impose intermediate sanctions under the following
circumstances:
(a) If the upper limit of the recommended minimum sentence range for a defendant
determined under the sentencing guidelines set forth in chapter XVII is 18 months
or less, the court shall impose an intermediate sanction unless the court states on
the record reasonable grounds to sentence the individual to incarceration in a county
jail for not more than 12 months or to the jurisdiction of the department of
corrections for any sentence over 12 months.
* * *
(c) If the upper limit of the recommended minimum sentence exceeds 18 months
and the lower limit of the recommended minimum sentence is 12 months or less,
the court shall sentence the offender as follows absent a departure:
(i) To imprisonment with a minimum term within that range.
The design of the indeterminate sentence law is to reform criminals and to convert
bad citizens into good citizens, and thus protect society. In order to accomplish this
result, the theory is that, when the prisoner has shown by his conduct that he may
turn from his criminal career, he should have an opportunity, under favorable
circumstances, to make the test. [People v Cook, 147 Mich 127, 132; 110 NW 514(1907).]
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(ii) To an intermediate sanction with or without a term of jail incarceration
of not more than 12 months.
MCL 769.31(b), as amended by 2020 PA 395, took effect on March 24, 2021, and currently
defines “intermediate sanctions” as “probation or any sanction, other than imprisonment in a
county jail, state prison, or state reformatory, that may lawfully be imposed.” (Emphasis added.)
The statute includes a long list of possible sanctions, including probation and rehabilitation
programs. Jail is not among the options. At the time of Pinson’s offense, plea entry, and
sentencing, however, imprisonment in a county jail was not excluded as an intermediate sentence.
See MCL 769.31(b), as amended by 2004 PA 220.2
MCL 771.1(1) precluded the trial court from considering the intermediate sanction of
probation for this CSC conviction.3 Pinson’s minimum guidelines range was 21 to 35 months. As
the lower end was not less than 12 months, MCL 769.34(c) does not apply to this case. And MCL
769.8(1) required imposition of an indeterminate sentence, even if the court determined that a
downwardly departing sentence was warranted.
2
MCL 769.31(b), as amended by 2002 PA 220, provided:
“Intermediate sanction” means probation or any sanction, other than imprisonment
in a state prison or state reformatory, that may lawfully be imposed. Intermediate
sanction includes, but is not limited to, 1 or more of the following:
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(iv) Probation with jail.
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(viii) Jail.
(ix) Jail with work or school release.
(x) Jail, with or without authorization for day parole under . . . MCL 801.251 to 801.258. . . .
3
MCL 771.1(1) provides:
In all prosecutions for felonies, misdemeanors, or ordinance violations other than
murder, treason, criminal sexual conduct in the first or third degree, armed robbery,
or major controlled substance offenses, if the defendant has been found guilty upon
verdict or plea and the court determines that the defendant is not likely again to
engage in an offensive or criminal course of conduct and that the public good does
not require that the defendant suffer the penalty imposed by law, the court may
place the defendant on probation under the charge and supervision of a probation
officer. [Emphasis added.]
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Pinson relied upon the 2003 case of People v Martin, 257 Mich App 457; 668 NW2d 397(2003), to support the validity of a six-month jail term for his CSC-III conviction. In Martin, 257
Mich App at 458, the defendant pleaded guilty to one count of larceny from a person. His
minimum sentencing guidelines range was 5 to 28 months and the court sentenced the defendant
to a determinate jail term of 10 months. Id. at 458-459. Because “the upper limit of the
recommended minimum sentence exceed[ed] 18 months and the lower limit of the recommended
minimum sentence [was] 12 months or less,” MCL 769.34(4)(c) applied. Martin, 257 Mich App
at 459. This Court described, “this statutory provision gives the trial court discretion to either
sentence a defendant to a term of imprisonment within the guidelines range or impose an
intermediate sanction.” Id. at 459-460. The trial court therefore could impose an intermediate
sanction.
In Martin, 257 Mich App at 460, as here, “the prosecution contend[ed] that the trial court
erred in imposing a determinate jail sentence for this felony offense.” This Court affirmed the
determinate sentence as follows:
Indeed, we have held that a determinate jail sentence for a felony is improper under
MCL 769.8, which provides that where a “punishment prescribed by law for that
offense may be imprisonment in a state prison, the court imposing sentence shall
not fix a definite term of imprisonment . . . .” See People v Austin, 191 Mich App
468, 469-470; 478 NW2d 708 (1991); see also People v Weaver, unpublished per
curiam opinion of the Court of Appeals, issued January 14, 2000 (Docket No.
213501). However, those decisions involved sentences imposed under the
permissive judicial sentencing guidelines, rather than sentences imposed under the
mandatory legislative sentencing guidelines. By expressly providing for
“intermediate sanctions” in a subcategory of cases with a relative lack of severity,
our Legislature plainly created an exception to MCL 769.8 by enlarging the trial
court’s sentencing discretion including imposing “intermediate sanctions” for
offenses that otherwise might have required imprisonment in state prison. MCL
769.34(4)(c)(ii). Thus, while our Legislature enacted a statutory sentencing scheme
that provides greater uniformity for sentences involving the most serious offenses
and offenders, it also provided trial courts with greater discretion regarding
sentences for offenses and offenders on the other end of the continuum. Therefore,
were we to apply Austin and similar cases to our current sentencing scheme, we
would negate our Legislature’s attempt to provide the trial court with the discretion
to sentence less serious offenders to intermediate sanctions.
In addition, we reject the prosecution’s assertion that a determinate sentence
was not an appropriate “intermediate sanction” because it could not “lawfully be
imposed” under MCL 750.357, which expressly provides for imprisonment in a
state prison. By its own terms, MCL 769.31(b)(viii) provides that “jail” is a lawful
“intermediate sanction.” Accordingly, the trial court’s ruling did not negate any
statutory language, but merely recognized that our Legislature created an exception
in less serious cases. In other words, the trial court’s ruling gave proper effect to
MCL 769.34(4)(c). Consequently, the trial court did not err as a matter of law in
imposing a determinate jail sentence. [Martin, 257 Mich App at 460-462.]
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The legislative sentencing guidelines have returned to an advisory, rather than mandatory,
role. Accordingly, unlike in Martin, the analysis of Austin and Weaver under an advisory guideline
scheme is relevant. Given these changes in the law, Martin is inapposite, and the cases Martin
rejected are actually on point. Moreover, the defendant’s minimum sentencing guidelines range
in Martin was only 5 to 28 months. Accordingly, unlike Pinson, the defendant in Martin was
entitled to be sentenced under MCL 769.34(4)(c), including the potential for an intermediate
sanction.
In Austin, 191 Mich App at 468-469, the defendant pleaded guilty to armed robbery, a
felony punishable by imprisonment for life or any term of years. The trial court sentenced the
defendant to one year in jail. Id. at 468. This Court vacated that sentence, in part, as violative of
MCL 769.8, reasoning:
Under the indeterminate sentence statute, when sentencing a defendant to a term of
years for the offense of armed robbery, the sentencing judge must not fix a definite
term of imprisonment. MCL 769.8. A defendant convicted of armed robbery must
be sentenced on an indeterminate basis, with the sentencing judge setting both the
minimum and maximum terms of imprisonment. MCL 769.9(2); MCL 750.529.
The maximum sentence that may be imposed for the offense of armed robbery is
imprisonment in state prison for life or any term of years. MCL 750.529; People v
Blythe, 417 Mich 430, 434; 339 NW2d 399 (1983). However, the minimum
sentence for armed robbery could be less than a year in state prison. Id.It is clear from the statutory scheme that a sentencing judge must sentence
a defendant convicted of armed robbery to life imprisonment or an indeterminate
prison sentence. In this case, the sentence imposed was a determinate sentence of
one year in the county jail. This sentence was improper because it did not provide
a minimum and maximum term of imprisonment and it did not require defendant
to serve his sentence in state prison. [Austin, 191 Mich App at 469-470.]
In Weaver, p 1, the defendant was convicted of three counts of CSC-III. Although his
recommended minimum sentencing guidelines range was 7 to 10 years, the court sentenced the
defendant to three concurrent one-year jail terms. Id. This Court vacated the sentence and
remanded for resentencing, reasoning:
The trial court’s one-year jail term for defendant’s felony convictions is
invalid because an indeterminate sentence is required for a CSC conviction. See
MCL 769.8; People v Frank, 155 Mich App 789, 791; 400 NW2d 718 (1986). In
addition, it was improper for the trial court to mandate that defendant serve his three
concurrent one-year terms in county jail. Because the maximum penalty required
by law for CSC-3 is fifteen years, defendant was required to serve his sentence in
a state prison. Id. [Weaver, p 1.]
The prosecution in this case also relied on the unpublished case of People v Tyrpin,
unpublished per curiam opinion of the Court of Appeals, issued April 15, 2003 (Docket No.
243603). In Tyrpin, the defendant was convicted of CSC-IV and CSC-III and received a one-year
jail sentence for his CSC-III conviction. The prosecution challenged that definite term of
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incarceration under MCL 769.8(1). Tyrpin, p 1. This Court vacated the sentence and remanded
for resentencing.
Defendant was convicted under the third-degree CSC statute, which
provides that CSC “in the third degree is a felony punishable by imprisonment for
not more than 15 years.” MCL 750.520d(2). This was defendant’s first felony
conviction. Under the indeterminate sentence act, MCL 769.8, 769.9, defendant
must be sentenced on an indeterminate basis, with the sentencing judge setting both
the minimum and maximum terms of imprisonment. See [Austin, 191 Mich App
at 469]; see, also, People v Kelly, 186 Mich App 524, 529; 465 NW2d 569 (1990).
Here, the trial court did not set minimum and maximum terms of imprisonment but,
instead, rendered a definite one-year jail term in violation of the indeterminate
sentencing act; therefore, resentencing is required. [Tyrpin, pp 1-2.]
In Frank, 155 Mich App at 790, the case relied upon by Weaver, the defendant was
convicted of three counts of CSC and was sentenced to concurrent terms of 5 to 15 years’
imprisonment. The defendant urged “that he could have been sentenced to ‘straight time’ in the
county jail.” Id. at 791. This Court rejected that proposition under MCL 769.8. This Court
focused only on the maximum term, which required the sentence to be served in prison. Frank,
155 Mich App at 791.
Ultimately, all these cases support that under the advisory sentencing guidelines, a
defendant convicted of CSC-III must be sentenced to an indeterminate term.
To summarize, the indeterminate sentencing statute, MCL 769.8(1), requires a court to
impose an indeterminate sentence with a minimum and a maximum term when a defendant is
convicted for a first-time felony and the violated statute provides for imprisonment in a state
prison. A court may depart from the recommended minimum guidelines range as provided in
MCL 769.34(3)(a). But a court is limited in the departure sentence it may impose. MCL 771.1(1)
precludes the court from imposing a probationary sentence for a defendant convicted of CSC-III.
MCL 769.34(4)(c) limits the imposition of an “intermediate sanction” by right to situations where
the low end of the defendant’s minimum sentencing guidelines range is below 12 months.
In this case, Pinson’s minimum sentencing guidelines range was 21 to 35 months.
Accordingly, Pinson did not have a statutory right to an intermediate sanction. The trial court was
entitled to depart from the guidelines range, but still must impose an indeterminate sentence.
Accordingly, the trial court erred in arguing that it would have been entitled to sentence Pinson to
a jail term had his offense and prior record variables been lower, placing him in a straddle cell in
the Class B offense grid. Rather, the court was required to impose a minimum and maximum
sentence, either within or outside of the recommended sentencing guidelines range.
We vacate Pinson’s sentence and remand for resentencing. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Sima G. Patel
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