People v. Jones

ON REMAND

Before: R. M. Maher, P.J., and J. H. Gillis and Wahls, JJ.

Per Curiam.

This case is before us for a second time, on remand by the Supreme Court, to consider an issue that was not raised in the prior appeal and which was only recently addressed by an appellate court of this state for the first time in People v Fernandez (On Remand), 164 Mich App 485; 417 NW2d 540 (1987). 428 Mich 888 (1987). That issue is whether a person convicted of conspiracy to commit first-degree murder, MCL 750.157a and 750.316; MSA 28.354(1) and 28.548, may be, unlike a person convicted of the substantive crime, eligible for parole. In Fernandez, a two-member majority answered that issue in the affirmative. One member, Judge Gillis, dissented. For many of the reasons expressed by Judge Gillis in his dissent, we hold that a person convicted of the offense in question is not eligible for parole and, therefore, certify this case as being in conflict with Fernandez.

In finding that a person convicted of conspiracy to commit first-degree murder was parolable, the Fernandez majority principally relied on the fact that the offense was not expressly mentioned as being one for which there could be no parole in the "lifer law,” MCL 791.234(4); MSA 28.2304(4). 164 Mich App 487-488. The lifer law basically provides that persons sentenced to life imprisonment for first-degree murder or for a major controlled substance offense are not eligible for parole. All other prisoners may be eligible for parole after serving ten years of their sentences. Thus, except for first-degree murder and major controlled substance violations, the lifer law does not expressly exclude persons convicted of any other offenses from parole eligibility. Regardless of this, though, we cannot assign the same import to the Legislature’s silence as did the Fernandez majority.

A fundamental rule of statutory construction is that the Legislature is presumed to have knowledge of existing laws upon the same subject. People v Buckley, 302 Mich 12, 21; 4 NW2d 448 (1942). At the time the conspiracy statute was enacted, the lifer law had been in existence for many years. See Fernandez, supra, p 489 (Gillis, J., dissenting). Thus, the Legislature is presumed to have known that a person convicted of first-degree murder was not eligible for parole at the time it proclaimed that a "person convicted [of a conspiracy offense] 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 . . . MCL 750.157a(a); MSA 28.354(1)(a). Because of this presumption of legislative knowledge — which was not rebutted in this case — we believe the Fernandez majority incorrectly interpreted the lifer law’s silence regarding parole eligibility for persons convicted of conspiracy to commit first-degree murder. Since the Legislature presumptively knew that conspiracy to commit first-degree murder was punishable by the same penalty as first-degree murder (including not being eligible for parole), we must conclude that had it intended otherwise it would have stated so expressly. Because the Legislature did not state that a person convicted of the conspiracy offense could be eligible for parole, we must infer that it did not intend such.

The language of the conspiracy statute itself, which speaks in terms of being punished by the same penalty as the substantive crime, supports our conclusion. While one may argue that parole eligibility is not appurtenant to a sentence imposed for a particular conviction, the same cannot be said for the penalty imposed. The lack of parole eligibility is undoubtedly a "penalty” imposed upon a person sentenced to life imprisonment for first-degree murder. Hence, the conspiracy statute mandates a like penalty for a person sentenced to life imprisonment for conspiracy to commit first-degree murder.

In closing, we emphasize that, as an appellate court, it is not our function to set the punishment parameters for the numerous criminal statutes. The Legislature, not the judiciary, has the exclusive power to designate both the grade of and the punishment for specific criminal offenses. See Const 1963, art 4, § 45; Attorney General v Recorder’s Court Judge, 341 Mich 461, 474-475; 67 NW2d 708 (1954); People v Rosecrants, 88 Mich App 667, 669; 278 NW2d 713 (1979); People v Shirley Johnson, 74 Mich App 652, 653; 255 NW2d 4 (1977). We must be careful not to substitute our judgment for that of the Legislature and disturb the proper exercise of its power. Here, the Legislature has proclaimed — if only by implication — that a person convicted of conspiracy to commit first-degree murder is a not eligible for parole. We are therefore bound by that proclamation.

Accordingly, defendant is held to be ineligible for parole. This case is certified as conflicting with the majority decision in Fernandez, supra.