PEOPLE OF MI V JEFFREY DOXEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
July 20, 2004
9:05 a.m.
Plaintiff-Appellant,
v
No. 247767
Muskegon Circuit Court
LC No. 02-48014-FH
JEFFREY DOXEY,
Defendant-Appellee.
Official Reported Version
Before: Fort Hood, P.J., and Donofrio and Borrello, JJ.
DONOFRIO, J.
The prosecutor appeals by leave of this Court from the judgment of sentence entered
following defendant's no-contest plea to possession with intent to deliver less than 50 grams of
cocaine, MCL 333.7401(2)(a)(iv); delivery of less than 50 grams of cocaine, MCL
333.7401(2)(a)(iv); and resisting and obstructing a police officer, MCL 750.479(b). Defendant
was sentenced as an habitual offender, second offense, MCL 769.10, to 17 to 360 months of
incarceration for each of the drug offenses, and 17 to 36 months on the resisting and obstructing
offense, to be served concurrently, as well as concurrently with another sentence defendant is
serving in prison, the trial court applying the amended sentencing provision of MCL 333.7401(3)
retroactively. We reverse and remand for resentencing.
The prosecutor alleged defendant's offenses occurred on October 2, 2002. On January
15, 2003, defendant pleaded no contest to the charges and the court accepted defendant's plea.
Defendant was sentenced on March 11, 2003.
The prosecutor's sole issue on appeal is that the trial court erred when it sentenced
defendant pursuant to amended sentencing provisions in effect at the time of the sentencing, but
not in effect at the time of the crime or the court's acceptance of the plea. We agree.
On March 1, 2003, 2002 PA 665 became effective and amended the sentencing provision
of MCL 333.7401. The old language of MCL 333.7401(3) stated in relevant part:
[A] term of imprisonment imposed pursuant to subsection (2)(a) or section
7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any
term of imprisonment imposed for the commission of another felony. [Emphasis
added.]
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The amended language of MCL 333.7401(3) states:
[A] term of imprisonment imposed under subsection (2)(a) may be
imposed to run consecutively with any term of imprisonment imposed for the
commission of another felony. [Emphasis added.]
Thus, the previous version, in effect at the time of the crime and the plea acceptance, mandated
that sentences under the statute be imposed consecutively to sentences for other felonies.
However, the amended version granted courts discretion. MCL 333.7401(3), as amended by
2002 PA 665.
At defendant's sentencing, the trial court was asked to decide whether the sentencing
provisions of MCL 333.7401 should apply as they were in effect at the time defendant
committed the crime or as amended by 2002 PA 665 and in effect on the day of sentencing. As
illustrated above, for the purpose of defendant's sentencing, the significant difference was that
under the new statute, the trial court had discretion to impose defendant's sentences
consecutively or concurrently. This issue was important because a Cobbs1 agreement was in
place stating that sentences would be imposed concurrently if the trial court ruled that, as a
matter of law, the amended sentencing provisions applied. After entertaining oral arguments on
the issue, the court ultimately decided that the amended version applied and in effect gave the
statute retroactive effect.
"The determination whether a statute should be applied retroactively is a legal issue that
is reviewed de novo." People v Thomas, 260 Mich App 450, 458; 678 NW2d 631 (2004). In
deciding which version of the statute was to be applied, the trial court reviewed the cases of
People v Schultz, 435 Mich 517; 460 NW2d 505 (1990), and People v Scarborough, 189 Mich
App 341; 471 NW2d 567 (1991), and reluctantly held that they control and require the amended
sentencing provisions be applied retroactively to cases pending at the time the amendment went
into effect.
In Schultz, supra, our Supreme Court addressed a similar issue in the context of two
consolidated cases where the defendants were charged and convicted for offenses likewise under
MCL 333.7401. In both cases, ameliorative amendments to the sentencing provisions of the act
went into effect after the offense and conviction. In one case the amendment went into effect
while on direct appeal to this Court but before a decision was issued, and, in the other, it went
into effect after conviction but before sentencing. Our Supreme Court inquired into the
legislative intent of the statute and reasoned that under the state Constitution the Legislature is
vested with exclusive authority to determine the terms of punishment imposed for violations of
criminal law and, therefore, has the authority to provide that an ameliorative amendatory act
applies retroactively or only prospectively. Id. at 525-526. The Court concluded that the
Legislature intended that the amendments would apply retroactively and stated:
1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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In the context of the two cases presented before this Court, however, we
disagree that the Legislature intended to exercise this power and so narrowly
constrict the prospective operation of the amended Public Health Code. In light
of the Legislature's decision that the current terms of punishment authorized in the
Public Health Code constitute an appropriate social response to narcotics crimes
and abuse, we would hold that the Legislature intended cases pending in the trial
court and those on direct appeal, where the issue is raised and preserved, on the
date the ameliorative amendments took effect, to be included within the ambit of
the amended Public Health Code. To conclude otherwise would be inconsistent
with the underlying purpose of the general saving statute and the sentencing
policies of this state. [Id. at 526 (opinion by Archer, J.).]
The Court then examined public policy and determined that the purpose of the particular
amendments was to allow trial courts greater discretion to determine sentences for narcotics
trafficking and abuse. Pointing out that defendant Schultz, who, before this offense, had no
criminal background and was a twenty-five-year-old middle school teacher, was a perfect
example of why the Legislature enacted the amendments, the Court concluded that it would be a
consistent conclusion that the Legislature intended that the ameliorative sentencing provisions
apply, even though the offense and conviction may have occurred before those provisions took
effect. Id. at 531-533.
Approximately one year after the Court's decision in Schultz, a panel of this Court
addressed another similar issue. In Scarborough, supra, the defendant was charged with and
pleaded guilty of possession with intent to deliver 50 grams or more, but less than 225 grams, of
cocaine, MCL 333.7401(2)(a)(iii). Though sentencing occurred in 1990, the trial court applied
the sentencing provision in place in 1987 when defendant committed the crime. Id. at 343.
Between the commission of the crime and the time of sentencing, the Legislature had amended
the penalty provisions twice. The Legislature first reduced the minimum sentence from 10 years'
to 5 years' imprisonment and allowed the sentencing judge the discretion to depart for substantial
and compelling reasons.2 And the second time, the Legislature restored the minimum sentence
of ten years, but left the provision allowing departure.3 Id. at 343. Notwithstanding the fact that
Schultz did not garner a majority and did not represent binding precedent,4 the panel was
persuaded that the holding of Schultz was correct and ordered that the defendant be resentenced
in accordance with the penalty provisions in effect at the time of his sentencing. Id. at 345.
Like the panel in Scarborough, we note that Schultz is merely a plurality opinion and is
not precedentially binding on this Court. However, Scarborough, adopting the holding and
reasoning of Schultz, having been decided after November 1, 1990, is binding on this panel
under MCR 7.215(J)(1). In any event, we find both cases readily distinguishable from this case.
2
1987 PA 275, effective March 30, 1988.
3
1989 PA 143, effective September 28, 1989.
4
See People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973).
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Just considering the language of the statute itself, unlike Schultz and Scarborough, this is
not simply a case of applying the ameliorative effects of a new, identical statute. The amending
act here, 2002 PA 665, not only amelioratively amended the sentencing provision of the statute,
but also changed the breakdown of the prohibited conduct contained in the statute, including the
addition of a new crime of delivery of over 100 grams, 2002 PA 665(2)(a)(i), a new crime of
delivery of 450 to 1,000 grams, 2002 PA 665(2)(a)(ii), a new crime of delivery of 50 to 450
grams 2002 PA 665(2)(a)(iii), and a new crime of delivery of less than 50 grams, 2002 PA
665(2)(a)(iv). Plainly, unlike in Schultz and Scarborough, the amended statutes here do not
proscribe the same conduct as did the former drug law.
Regarding the legislative intent behind the statute, we start with the proposition that
"[a]mendments of statutes are generally presumed to operate prospectively unless the Legislature
clearly manifests a contrary intent." Thomas, 260 Mich App 458-459, quoting Tobin v
Providence Hosp, 244 Mich App 626, 661; 624 NW2d 548 (2001), citing Selk v Detroit Plastic
Products, 419 Mich 1, 9; 345 NW2d 184 (1984). We observe no language in the amended
statute indicating that it is to be applied retroactively. In fact, the opposite is true when we
consider the interrelationship between 2002 PA 665 with both 2002 PA 666 and 2002 PA 670.
Because 2002 PA 665 expressly states that it would not take effect unless both 2002 PA 666 and
2002 PA 670 were enacted into law, as well as the fact that they relate to the same subject
matter, we read the three pieces of legislation in pari materia.5 See People v Webb, 458 Mich
265, 274-275; 580 NW2d 884 (1998); People v Dobben, 440 Mich 679, 692; 488 NW2d 726
(1992).
Our plain reading of 2002 PA 665, together with the companion sentencing legislation
represented by 2002 PA 666 and 2002 PA 670, indicates that 2002 PA 665 should not be applied
retroactively. In 2002 PA 666, the statutory language addresses the applicability of the
sentencing guidelines and directs that mandatory minimum sentences in effect on the date the
offense occurred determines the sentence imposed. Also, the language included in 2002 PA 670
established early parole opportunities for individuals convicted of drug offenses before the date
the amended drug laws became effective. Hence, a fair and practical interpretation of the
companion legislation, namely 2002 PA 665, 2002 PA 666, and 2002 PA 670, requires us to
interpret that 2002 PA 665 be applied prospectively only and only to offenses committed on or
after the effective date of the legislation, March 1, 2003.
We also note prophylactically, that this interpretation is the only interpretation that
avoids potential ex post facto claims in violation of the Ex Post Facto Clause of the Michigan
Constitution and of the United States Constitution. Const 1963, art 1, § 10, US Const, art I, § 10,
5
"Statutes in pari materia are those which relate to the same person or thing, or the same class
of persons or things, or which have a common purpose. It is the rule that in construction of a
particular statute, or in the interpretation of its provisions, all statutes relating to the same
subject, or having the same general purpose, should be read in connection with it, as together
constituting one law, although enacted at different times, and containing no reference one to the
other." State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998) (emphasis
added), quoting Detroit v Michigan Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965).
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cl 1. Any other interpretation leaves that possibility open because the new versions of MCL
333.7401(2)(a)(i)-(iv) allow for fines to be levied on those sentenced under the amended statute.
We can easily envision a fact scenario posing a potential ex post facto violation claim, where, as
here, defendant was convicted under the previous version of the law but sentenced under the
amended statute. In that scenario, retroactive application of the statute would empower the trial
court to levy a fine on the defendant as part of his sentence although the taxing of large monetary
fines was not a potential sentence at the time defendant committed the crime or when he was
convicted of the crime. In order to avoid any potential ex post facto claim, the statute should not
be applied retroactively.
Finally, recent case law supports the proposition that the statute should not be applied
retroactively. In a published opinion of this Court discussing the exact amendment at issue,
2002 PA 665, although specifically pertaining to the revised MCL 333.7401(2)(a)(iii), the Court
found that, "the Legislature declined to specifically apply the amended sentencing provisions of
MCL 333.7401(2)(a)(iii) retroactively . . . ." Thomas, 260 Mich App 459. While the defendant
would distinguish his case from Thomas, because sentencing in Thomas occurred before the
effective date of the amended drug law on March 1, 2003, we are not persuaded in light of our
earlier analysis. Further, the Michigan Supreme Court in its order in People v Dailey, 469 Mich
1012 (2004), vacating footnote 1 of the unpublished opinion of the Court of Appeals issued
August 26, 2003 (Docket No. 239683), which instructed the trial court on resentencing to use the
ameliorative provisions of the amended drug law, stated, "The statute [MCL 769.34(2)] provides
that courts shall sentence defendants in accord with the minimum sentences prescribed by the
'version of those sentencing guidelines in effect on the date the crime was committed.' This
demonstrates a legislative intent to have defendant sentenced under the law in effect on the date
of his offense, which predated the amendment of MCL 333.7401."
For all these reasons, we conclude that the statute operates prospectively only and that
the trial court erroneously applied the amended sentencing provisions. We remand for
resentencing in accordance with the previous incarnation of MCL 333.7401.
Reversed and remanded. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Pat M. Donofrio
/s/ Stephen L. Borrello
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