People v. Fernandez , 164 Mich. App. 485 ( 1987 )

164 Mich. App. 485 (1987) 417 N.W.2d 540

PEOPLE
v.
FERNANDEZ

Docket No. 98521.

Michigan Court of Appeals.

Decided November 16, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan Meinberg Thomas), for defendant on appeal.

Before: BEASLEY, P.J., and J.H. GILLIS and GRIBBS, JJ.

ON REMAND

PER CURIAM.

On appeal, the Supreme Court has reversed the decision of this Court^[1] and held that a mandatory life sentence is required on conviction of conspiracy to commit first-degree murder under MCL 750.157a; MSA 28.354(1). The Supreme Court further provided as follows:

We remand the case to the Court of Appeals for briefing and decision on whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder is eligible for parole consideration under MCL 791.234(4); MSA 28. 2304(4) and, if so, the proper retroactive effect of such a decision.[^[2]]

The "lifer law" set forth in MCL 791.234(4); MSA 28.2304 (4) provides as follows:

A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions....

Both defendant and the prosecutor agree that after serving ten years defendant is eligible for parole consideration under MCL 791.234(4); MSA 28.2304(4) where, as here, he was sentenced to life imprisonment for conspiracy to commit first-degrea murder. The lifer law statute does not specifically exclude persons convicted of conspiracy to commit first-degree murder and sentenced to life imprisonment from the jurisdiction of the parole board after serving ten calendar years of the sentence. The conspiracy statute, MCL 750.157a; MSA 28.354(1), provides for punishment by penalty equal to that which could be imposed if defendant had been convicted of committing the crime he conspired to commit. The first-degree murder statute, MCL 750.316; MSA 28.548, provides that a person convicted of first-degree murder shall be punished by imprisonment for life. This statute does not, however, state that such a sentence of life imprisonment is nonparolable. What makes first-degree murder a nonparolable life offense is MCL 791.234(4); MSA 28.2304(4). In other words, first-degree murder is nonparolable because it is specifically excluded from the above statute, while conspiracy to commit first-degree murder is not.

Furthermore, Proposal B does not preclude application of the lifer law to persons convicted of conspiracy to commit first-degree murder. In 1984, in People v Johnson,^[3] the Supreme Court held that Proposal B had no application to fixed or life sentences. Therefore, as the Supreme Court recognized in the within case:

Thus, there is no apparent restriction arising from Proposal B on application of the "lifer law" to a life sentence imposed for conspiracy to commit first-degree murder.[^[4]]

We agree with both defendant and the prosecutor and conclude that a person sentenced to life for conspiracy to commit first-degree murder is subject to the jurisdiction of the parole board after serving ten calendar years.

We further believe that this decision, which is essentially a restatement and clarification of existing law, should receive full retroactive effect.^[5]

J.H. GILLIS, J. (dissenting).

I dissent and I would hold that a person convicted of conspiracy to commit first-degree murder must be sentenced to mandatory, nonparolable life in prison.

MCL 750.157a; MSA 28.354(1) provides in part:

Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:

(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [Emphasis supplied.]

MCL 791.234(4); MSA 28.2304(4) provides:

A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions.... [Emphasis supplied.]

MCL 750.157a; MSA 28.354(1) became effective on March 10, 1967. MCL 791.234(4); MSA 28.2304(4), as it pertains to the nonparolability of those convicted of first-degree murder, has been in effect since 1948. Although MCL 791.234(4); MSA 28.2304(4) has been amended since 1948, including 1978, this language has not been altered.

While the majority argues that MCL 791.234(4); MSA 28.2304(4) is unambiguous, I believe other rules of statutory construction are more properly applied to this case. First, I note that the Legislature is charged with knowledge of the existing laws on the same subject when it promulgates new laws. See, e.g., People v Buckley, 302 Mich. 12, 21; 4 NW2d 448 (1942). Second, an administrative agency's interpretation of a statute is given great weight due to the expertise of the agency with respect to the subject under its jurisdiction. PSB State Bank v Comerica Inc, 151 Mich. App. 452, 460; 391 NW2d 371 (1986). Third, the Legislature's reenactment of a statute which was interpreted in a particular manner gives rise to an inference that the Legislature approved that interpretation. See, e.g., Wayne Co v Auditor General, 250 Mich. 227, 237; 229 N.W. 911 (1930). Fourth, the primary goal of statutory construction is to determine the intent of the Legislature; therefore, it is important to consider the general purpose sought to be accomplished by a statute in determining its meaning. PSB State Bank, supra, 460.

As defendant concedes, the present conspiracy statute was enacted following the Legislature's dissatisfaction with the lenient penalties previously provided. At the time MCL 750.157a; MSA 28.354(1) was passed, the penalty for first-degree murder was mandatory, nonparolable life. The Legislature must be charged with knowledge of this penalty. See, e.g., Buckley, supra. Furthermore, the parole board has consistently interpreted the penalty for conspiracy to commit first-degree murder as mandatory, nonparolable life. In amending MCL 791.234(4); MSA 28.2304(4), the Legislature did not specifically state that conspiracy to commit murder in the first degree was a parolable offense despite its chargeable knowledge of the parole board's interpretation. See, e.g., Buckley, supra; Wayne Co, supra. Finally, I believe that the Legislature intended to punish conspiracy to commit a felony at least as seriously as the commission of the felony itself. MCL 750.157a; MSA 28.354(1). I note that conspiracy may be more severely punished because the defendant must plan the crime with another. Id. For these reasons, I believe that defendant is properly sentenced to mandatory, nonparolable life. I further note that I do not believe that defendant should benefit merely because the hit men he hired were unsuccessful.

I further believe that this decision is a restatement of existing law and, therefore, is entitled to full retroactive effect. People v Szymanski, 102 Mich. App. 745; 302 NW2d 316 (1981), lv den 411 Mich. 863 (1981). I would affirm.

NOTES

[1] People v Fernandez, 143 Mich. App. 388; 372 NW2d 567 (1985).

[2] People v Fernandez, 427 Mich. 321, 343; 398 NW2d 311 (1986).

[3] 421 Mich. 494, 498; 364 NW2d 654 (1984).

[4] Fernandez, supra, 427 Mich at 333.

[5] See People v Kamin, 405 Mich. 482, 494; 275 NW2d 777 (1979); People v Szymanski, 102 Mich. App. 745; 302 NW2d 316 (1981).