PEOPLE OF MI V ROBERT VICTOR MICHIELUTTIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 3, 2005
Macomb Circuit Court
LC No. 02-001008-FH
ROBERT VICTOR MICHIELUTTI,
Official Reported Version
Before: Murray, P.J., and Markey and O'Connell, JJ.
MURRAY, P.J. (concurring in part and dissenting in part).
In addressing the issue raised and decided below and now raised on appeal by defendant,
the majority correctly concludes that the trial court erred in failing to address several of the
objective and verifiable factors for a downward sentence departure presented to it by defendant.
Those factors are defendant's age, lack of prior record, work history, and family support. See
People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995). Therefore, I concur in the need to
remand this case for resentencing so that the trial court can address those factors raised by
However, I part company with my colleagues in their sua sponte initiative to create new
standards for use by trial courts when considering sentencing departures. With all due respect to
the majority, there are significant procedural reasons why their discussion on this issue is
As any casual reader of the Michigan Appeals Reports will recognize, we quite
frequently inform parties that we will not address an issue not raised or decided by the trial court,
on the basis that it is not properly preserved. Adam v Sylvan Glynn Golf Course, 197 Mich App
95, 98; 494 NW2d 791 (1992); People v Stacy, 193 Mich App 19, 28; 484 NW2d 675 (1992).
We are likewise disinclined to review issues that are actually raised by the parties, but not
adequately briefed. See, e.g., Steward v Panek, 251 Mich App 546, 558; 652 NW2d 232 (2002).
The general rationale supporting these prudent rules of appellate procedure is that it is best to
decide issues with the benefit of briefing and argument. Bradley v Saranac Bd of Ed, 455 Mich
285, 302-303; 565 NW2d 650 (1997). Although we will, at times, decide a legal issue when the
facts necessary to its resolution are properly before us, that is usually invoked when a party
raises the issue to this Court as an alternative means to affirm. See Spruytte v Owens, 190 Mich
App 127, 132; 475 NW2d 382 (1991).
Here, defendant did not argue to the trial court that a change in the law was a basis to
support a downward departure, and he has not raised that issue before this Court. Thus, the
majority has taken upon itself to raise an issue that has never been raised in either court1 and that
addresses an issue that has not been decided by any appellate court of this state. This is contrary
to the policies of appellate procedure noted above, and it is imprudent to overlook those cases.
Additionally, because we have unanimously concluded that resentencing is required on
the basis of the trial court's failure to consider all defendant's articulated objective and verifiable
reasons for departure, Fields, supra, any further discussion is unnecessary to a decision, and
therefore dicta. Mitchell v Detroit, 264 Mich App 37, 44; 689 NW2d 239 (2004). For these
reasons, I would not discuss or decide the issue whether a change in law is a factor to be utilized
by a trial court in departing from a sentencing guideline, as that decision is better left to a case in
which the Court has benefited from full advocacy.2
No appellate court in this state has yet to hold that a change in the law—which is
obviously objective and verifiable—can be considered in determining whether a defendant's
sentence should deviate below (or above) the sentencing guidelines. I advocate against creating
this questionable new rule of law in a case in which the issue was neither raised nor decided at
/s/ Christopher M. Murray
Of course, there are limited circumstances under which a court must raise issues sua sponte,
such as the issue of subject-matter jurisdiction. In re Fraser Estate, 288 Mich 392, 394; 285 NW
It is also quite possible that the majority has erred in its conclusion. We have unequivocally
held that the amendments to MCL 333.7401 do not apply retroactively. People v Thomas, 260
Mich App 450, 458-459; 678 NW2d 631 (2004). Thus, in Thomas, the defendant, who was
sentenced on April 24, 2002, could not benefit from the amended statute effective March 1,
2003. So too here. As the majority notes, Thomas is binding and precludes application of the
amended statute to defendant, who was sentenced on September 9, 2002. Such a conclusion is
also consistent with MCL 769.34(2), which provides generally that a defendant is to be
sentenced under the law in effect on the date of his offense. People v Dailey, 469 Mich 1019
The majority's direction to the trial court to consider this change of law if it determines
that other factors point to a downward departure seems contrary to this law. If an amendment to
a sentencing statute is not retroactive, how can a court be allowed to consider the amendment
when sentencing? If the amendment is not retroactive, it does not apply to any circumstances
occurring before its enactment date.