PEOPLE OF MI V GEORGE HENRY MARTIN III
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
July 8, 2003
9:10 a.m.
Plaintiff-Appellant,
v
No. 243008
Oakland Circuit Court
LC No. 02-184542-FH
GEORGE HENRY MARTIN III,
Defendant-Appellee.
Updated Copy
August 29, 2003
Before: Owens, P.J., and Bandstra and Murray, JJ.
MURRAY, J., (concurring).
We granted leave in this case to decide whether it is unlawful for a trial court to sentence
a second-offense habitual offender to a straight jail term as an intermediate sanction under the
statutory sentencing guidelines, MCL 769.34(4)(c)(ii). Under the controlling statutes, an
indeterminate sentence must be imposed upon a second-offense habitual offender only when the
court sentences a defendant to imprisonment for a "term of years," MCL 769.10(2), and
therefore, a straight jail term is a permissible form of intermediate sanction under MCL
769.31(b). I write separately, however, to specifically address the prosecution's argument under
MCL 769.31(b).
Resolution of this case requires us to apply several different provisions of our state
sentencing statutes to the facts presented before the trial court, a task we perform utilizing a de
novo standard of review. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). "In
construing a statute, it is our obligation to review the words of the statute and give the words
used their plain and ordinary meanings." Stone v Michigan, 467 Mich 288, 291; 651 NW2d 64
(2002), citing Herald Co v Bay City, 463 Mich 111, 117-118; 614 NW2d 873 (2000). It is
likewise our duty to read statutes dealing with the same subject matter in pari materia, that is, to
interpret them consistently with each other, so long as the language in the statutes permit such a
construction. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). It is equally clear that
we must give effect to all words and provisions within a statute, so as to avoid a construction that
renders any part of a statute nugatory. Pohutski v City of Allen Park, 465 Mich 675, 683-684;
641 NW2d 219 (2002).
There are several statutes that must be considered in resolving this issue. As noted, the
maximum punishment for the felony committed by defendant is ten years in a state prison. MCL
-1-
750.357. However, because defendant is a second-offense habitual offender, MCL 769.10(1)(a)
sets forth the additional sentencing options of probation or a maximum sentence of 1-1/2 times
the maximum for a first conviction. This section provides, in pertinent part:
(1) If a person has been convicted of a felony or an attempt to commit a
felony, whether the conviction occurred in this state or would have been for a
felony or attempt to commit a felony in this state if obtained in this state, and that
person commits a subsequent felony within this state, the person shall be
punished upon conviction of the subsequent felony and sentencing under section
13 of this chapter as follows:
(a) If the subsequent felony is punishable upon a first conviction by
imprisonment for a term less than life, the court, except as otherwise provided in
this section or section 1 of chapter XI, may place the person on probation or
sentence the person to imprisonment for a maximum term that is not more than 1
1/2 times the longest term prescribed for a first conviction of that offense or for a
lesser term. [Id. (emphasis added).]
MCL 769.10(2) provides that if the court decides to impose a sentence of imprisonment for any
"term of years" under 769.10(1)(a), the sentence "shall" be an indeterminate one:
If the court pursuant to this section imposes a sentence of imprisonment
for any term of years, the court shall fix the length of both the minimum and
maximum sentence within any specified limits in terms of years or a fraction of a
year and the sentence so imposed shall be considered an indeterminate sentence.
[Emphasis added.]
In this case, rather than sentencing defendant to either probation (which could also include jail
time) or an indeterminate sentence of imprisonment for a "term of years," the trial court
sentenced defendant to a straight ten months in the county jail.
I agree that defendant was entitled to an intermediate sanction because it was stipulated
before the trial court that his sentence was scored under the sentencing guidelines as five to
twenty-eight months. MCL 769.34(4)(c)(ii) provides:
(4) Intermediate sanctions shall be imposed under this chapter as follows:
(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.
(ii) To an intermediate sanction that may include a term of imprisonment
of not more than twelve months. [Emphasis added.]
-2-
However, "intermediate sanction" is specifically defined as "probation or any sanction, other than
imprisonment in a state prison or state reformatory, that may lawfully be imposed." MCL
769.31(b) (emphasis added).
The question left unanswered by the majority is whether an intermediate sanction of
straight jail time "may lawfully be imposed" when the habitual-offender statute requires a court
to give an indeterminate sentence once the court decides to sentence a second-offense habitual
offender to a "term of years." In my view, by giving effect to both statutory provisions, the
answer is that a straight jail term can be lawfully imposed on a second-offense habitual offender.1
The caveat within MCL 769.31(b) that the intermediate sanction must be one that can
"lawfully be imposed" ensures that other sentencing provisions enacted by the Legislature for a
particular circumstance are given effect. Thus, in this case, because defendant is a second
offense habitual offender, the trial court was required, when determining the lawfulness of an
intermediate sanction, to consider the indeterminate sentence requirement of MCL 769.10(2). By
doing so, the provisions within both statutes are given full effect. Webb, supra; Pohutski, supra.
As noted, under MCL 769.10(2), a court must only impose an indeterminate sentence if
the court imposes a sentence that is for a term "of years." Imposing a "term of years" is
discretionary, which is made clear by both the language of MCL 769.10(2) ("If the court . . .")
and MCL 769.10(1)(a), which provides the court with the sentencing options of either (1)
probation, (2) imprisonment, which can be for a maximum "term"2 of no more than 1½ times the
maximum for a first conviction, or (3) imprisonment for a "lesser term."3 Thus, by following the
plain, straightforward words of these statutes, it appears that the Legislature desired
indeterminate sentences only when a court imposed a sentence consisting of a "term of years,"
MCL 769.10(2), but that a court could, in sentencing a second-offense habitual offender, impose
a sentence of imprisonment for a "term," with the only caveat being that it not exceed 1½ times
the maximum sentence for the first conviction.4
In this case, the trial court did not sentence defendant to imprisonment for a "term of
years," and, hence, the indeterminate-sentencing requirement was inapplicable. Rather, the trial
court followed the applicable sentencing guidelines, which allowed for an intermediate sanction
and which was lawfully imposed, because the court could impose straight jail time as a lesser
1
The majority correctly notes that the ten-year maximum sentence under MCL 750.357 does not
render use of the intermediate sanction unlawful because the Legislature specifically included
MCL 750.357 within the crimes to which the guidelines are applicable. MCL 777.16r. There is
no such provision for habitual offenders.
2
Not "term of years" as provided in MCL 769.10(2).
3
Again, not for a lesser "term of years," but a lesser "term."
4
The prosecution's reliance on People v Bewersdorf, 438 Mich 55, 60 n 5; 475 NW2d 231
(1991), is misplaced, because the reference in footnote was obiter dictum since the Court
recognized the sentencing issue under MCL 769.10(2) was not raised on appeal.
-3-
"term" under MCL 769.10(1)(a). For these reasons, I believe the trial court lawfully imposed the
sentence on defendant.
/s/ Christopher M. Murray
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
