People v. Tolbert ( 1996 )

549 N.W.2d 61 (1996) 216 Mich. App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Cedrick Kraig TOLBERT, Defendant-Appellant.

Docket No. 182583.

Court of Appeals of Michigan.

Submitted December 19, 1995, at Grand Rapids. Decided April 19, 1996, at 9:10 a.m. Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the people.

Smith, Haughey, Rice & Roegge by Elizabeth Roberts VerHey, Grand Rapids, for defendant.

Before HOOD, P.J., and YOUNG and BROWN,^[*] JJ.

YOUNG, Judge.

Defendant pleaded guilty of malicious destruction of property valued at more than $100, M.C.L. § 750.377a; M.S.A. § 28.609(1). He was sentenced to six to forty-eight months of imprisonment to be served consecutively to a prior two to ten year sentence for breaking and entering, from which sentence defendant had been paroled at the time he committed the instant offense. Defendant appeals as of right his sentence and also challenges whether he is obligated to serve the maximum term of the B & E sentence before he may begin to serve the sentence imposed in this case.

I

The victim in this case lived in an apartment across the hall from defendant. On the morning of the crime, defendant rang the victim's doorbell and asked to use her phone. She declined because she was using the phone at that moment. Approximately fifteen minutes later, defendant again rang the victim's bell. This time defendant asked her for a ride. The victim indicated that she was still on the phone but would consider giving defendant a ride later. In response, defendant yelled: "If you don't open the door, you'll be sorry."

Thereafter, the victim observed defendant from her apartment window walking across the parking lot carrying a concrete block, which he threw through the windshield of her automobile. The damage exceeded $100.

Defendant waived his right to trial and pleaded guilty of malicious destruction of property. In exchange for defendant's plea, the prosecutor agreed to dismiss a habitual offender charge.

At the time of the malicious destruction crime, defendant was on parole from a two to ten year sentence imposed for a conviction of breaking and entering. The sentencing court noted that the manner in which the sentences would be served would be determined by the Department of Corrections. The parties agree that the Department of Corrections will require the ten-year maximum sentence to be served in full before defendant begins serving any part of the sentence imposed in this case pursuant to People v. Young, 206 Mich.App. 144, 521 N.W.2d 340 (1994), lv. gtd., 448 Mich. 932, 534 N.W.2d 521 (1995).

II

A

Defendant first challenges the proportionality of his malicious destruction sentence. The scope of this Court's review of sentencing decisions is narrow, and we may not disturb a sentence imposed unless the trial court abused its discretion under the principles of proportionality announced in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).

The sentence imposed in this case fell within the sentencing guidelines' prescribed range (zero to nine months). Such a sentence is presumptively proportionate. People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987). Defendant has presented no evidence of "unusual circumstances" to remove his case from that presumption. Milbourn, supra at 661, 461 N.W.2d 1. Accordingly, we find no error in the sentence the trial court imposed for the malicious destruction conviction.

B

The more significant appellate challenge defendant has raised concerns whether he must serve the maximum term of the sentence imposed for his breaking and entering conviction before the sentence imposed in this case commences. Where, as in this case, a person commits a crime while on parole, M.C.L. § 768.7a(2); M.S.A. § 28.1030(1)(2) (hereinafter the Act) requires that the sentence for the new conviction be served consecutively to the "remaining portion of the term of imprisonment imposed for the previous offense."^[1] Defendant does not challenge that he must serve his new sentence consecutively to his prior sentence, but whether the quoted portion of the Act requires that the maximum term of the prior sentence must first be served.

Defendant frontally challenges this Court's decision in People v. Young, wherein another panel of this Court concluded that the Act required that the maximum term of a prior sentence must be served prior to the commencement of a sentence imposed for a new crime. With due respect to our learned colleagues who formed the panel in Young, for the reasons stated herein we believe that defendant's challenge to Young is well-founded and that the Young case was wrongly decided.^[2]

In Young, this Court was compelled to resolve a dispute as to whether the portion of the Act quoted above required that the new term of imprisonment commence at the conclusion of the maximum term of the prior sentence or some lesser period. The Parole Board, through the Department of Corrections, in reliance on statutes^[3] which address its jurisdiction over convicted felons and the manner in which it is to calculate terms for consecutive sentencing purposes, argued that parolees who commit a felony offense while on parole are subject to consecutive sentences, but that the subsequent sentence begins to run at the conclusion of the minimum term of the prior offense. Young, supra at 155, 521 N.W.2d 340. The prosecutor urged, and the trial court held, that the Parole Board's interpretation of the Act was flawed and that the Act required that the maximum of the prior term be served before the new sentence began.

The Young panel did not give the phrase "remaining portion of the term of imprisonment imposed for the previous offense" its plain and customary meaning. Instead, that panel held that the phrase meant the maximum term of an indeterminate sentence imposed for the previous offense." Young, 206 Mich.App. at 157-159, 521 N.W.2d 340. No dictionary we have consulted equates "remaining" with "maximum" or suggests that they are even loosely synonymous. Manifestly, "remaining portion" definitionally means residuum —that which is left over.^[4] Courts do not have broad discretion to interpret unambiguous language in a statute:

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v. Total Petroleum, Inc, 442 Mich. 201, 212; 501 NW2d 76 (1993). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Dep't of Social Services v. Brewer, 180 MichApp 82, 84; 446 NW2d 593 (1989). Nothing will be read into a statute that is not within the manifest intention of the Legislature as gathered from the act itself. In re Marin, 198 MichApp 560, 564; 499 NW2d 400 (1993). The first criterion in determining intent is the specific language of the statute. [Dodak,] House Speaker v. State Administrative Bd, 441 Mich. 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v. Model Coverall Service, Inc, 182 MichApp 741, 744; 453 NW2d 301 (1990). As explained in Nat'l Exposition Co v. Detroit, 169 MichApp 25, 29; 425 NW2d 497 (1988):

"A cardinal rule of statutory interpretation is that courts may not speculate as to the probable intent of the Legislature beyond the words employed in the statute. A word or phrase in a statute is to be given its plain and ordinary meaning.... When the language of a statute is clear and unambiguous, judicial construction is neither required nor permitted. Such a statute must be applied, and not interpreted, since it speaks for itself. [In re Schnell, 214 Mich.App. 304, 309-310, 543 N.W.2d 11 (1995).]

The Young panel examined the statutes relied upon by the Department of Corrections, then-M.C.L. § 791.238(5); M.S.A. § 28.2308(5) and the statute referred to therein, M.C.L. § 791.234(2); M.S.A. § 28.2304(2) (renumbered in 1994 as M.C.L. § 791.234[3]; M.S.A. § 28.2304[3]; hereafter referred to as the "Parole Statutes;" see footnote 3), and concluded that they supported the department's position. Young, supra at 156, 521 N.W.2d 340. Notwithstanding, the Young panel held that "the interpretation of the Department of Corrections is contrary to a plain reading of [the Act] and contrary to the legislative intent." Id. The panel was able to do so because it found conflict between the Act and the two Parole Statutes (addressed to the jurisdiction of Parole Board), and further found—not on the basis of a construction of the language of the Act, but on the basis of an informal House legislative analysis of the Act when it was proposed—that our Legislature intended that the maximum term of the prior sentence be served before the new consecutive sentence began.^[5]Id. at 156-158, 521 N.W.2d 340.

Having found a "conflict" between these three statutes, the Young panel resolved it by resort to the questionable doctrine of "implied repeal."^[6] The Young Court held that the Act, being enacted later than the Parole Statutes, evidenced the Legislature's implied repeal of the Parole Statutes. Id. at 158, 521 N.W.2d 340. The frank error of the Young panel's statutory construction and its implied repeal rationale were proved by the Legislature's reenactment of the Parole Statutes—on June 27, 1994, approximately a week before Young was decided.^[7]

Contrary to our colleagues on the Young panel, we conclude that the Act and the Parole Statutes work in harmony with one another and that there is no conflict between them. The three statutes respect the division of roles between the courts, which sentence defendants, and the executive branch (through the Department of Corrections), which has jurisdiction over the disposition of persons who have been sentenced. See M.C.L. § 791.266; M.S.A. § 28.2326 (defendants are sentenced to the custody of the Department of Corrections).

The Act is addressed to the judiciary and mandates consecutive sentences for parolees who commit crimes while on parole. It does not, however, concern post-sentencing dispositional issues such as how much time of a prior indeterminate sentence a convicted person must serve before the new sentence to be consecutively served commences. The Parole Statutes, on the other hand, address the jurisdiction of the Parole Board. Not surprisingly, the Parole Statutes do prescribe dispositional issues, including the amount of time a parolee must serve of his prior sentence before his new sentence begins.

Given the differing roles of the judiciary and the Department of Corrections in the sentencing and disposition of persons convicted of crimes, it is entirely consistent that the Legislature chose to use "remaining portion" rather than "maximum term" in the Act. If, as the Young panel presumed, it had been the Legislature's intent to change these roles and impose on the courts dispositional issues which have been customarily within the jurisdiction of the Department of Corrections, it could have made that intent clear by using "maximum term" rather than "remaining portion" in the Act to signify that the Parole Board's traditional jurisdiction was extinguished.

But for the compulsion mandated by Administrative Order No. 1994-4 that we follow Young, we would hold that the Act does not require that the defendant serve the maximum term imposed as a consequence of his breaking and entering conviction prior to commencing his sentence for malicious destruction.

Affirmed.

NOTES

[*] Thomas Leo Brown, 30th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] The entire subsection states:

If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense. [Emphasis added.]

[2] We are aware that our Supreme Court has accepted leave in Young; it held oral arguments on that case in November 1995. The Supreme Court's determination in Young will be controlling in this case. While we are tempted to hold this case in abeyance until the Supreme Court has rendered its decision in Young, we are obliged by Administrative Order No. 1994-4 to follow the rule announced in Young irrespective of our belief that case was wrongly decided. Consequently, we see no value in delaying release of this opinion.

[3] See M.C.L. § 791.238(5); M.S.A. § 28.2308(5), which, in turn, refers to M.C.L. § 791.234; M.S.A. § 28.2304. The two statutes provided, in part:

A prisoner committing a crime while at large on parole and being convicted and sentenced for the crime shall be treated as to the last incurred term as provided under section 34. [M.C.L. § 791.238(5); M.S.A. § 28.2308(5).]

If a prisoner is sentenced for consecutive terms, whether received at the same time or at any time during the life of the original sentence, the parole board shall have jurisdiction over the prisoner for purposes of parole when he has served the total time of the added minimum terms, less the good time and disciplinary credit allowed by statute. The maximum terms of the sentences shall be added to compute the new maximum term under this subsection, and discharge shall be issued only after the sum total of the maximum sentences has been served less good time credit the prisoner may earn or may be awarded by appropriate order; unless the procedure of parole shall intervene and discharge issue upon satisfactory completion of said parole, in which case the maximum term shall be discharged. [M.C.L. § 791.234(2); M.S.A. § 28.2304(2).]

[4] By way of example, Webster's New World Dictionary of the American Language (2d College Ed.), p. 1201, defines "remainder" as follows:

1. those remaining 2. what is left when a part is taken away; the rest....

SYN.—remainder is the general word applied to what is left when a part is taken away [the remainder of a meal, one's life, etc.]; residue and residuum apply to what remains at the end of a process, as after the evaporation or combustion of matter or after the settlement of claims, etc. in a testator's estate....

[5] It has been observed in the federal context that resort to "legislative history" in the search for legislative intent is a perilous venture. Marposs Corp. v. Troy, 204 Mich.App. 156, 167-168, n. 2, 514 N.W.2d 202 (1994) (Taylor, J., dissenting), quoting Address by Justice Antonin Scalia before the Attorney General's Conference on Economic Liberties (June 14, 1986). This enterprise is doubly fraught with danger in Michigan which, unlike Congress, has failed to create an authoritative legislative record. Id.

[6] Repeals by implication are disfavored in the law. Rocco v. Michigan Dep't of Mental Health, 114 Mich.App. 792, 797-798, 319 N.W.2d 674 (1982), aff'd, 420 Mich. 567, 363 N.W.2d 641 (1984). The wisdom of this principle of disfavor is most aptly illustrated in the Young case itself wherein the statutes there held impliedly repealed were reenacted just days before the publication of Young. See 1994 PA 217, approved June 24, 1994, and filed June 27, 1994. Young was decided July 5, 1994.

[7] The reenacted Parole Statutes contained minor changes not material to the decision in Young.