PEOPLE OF MI V MICHAEL DEAN CARAWAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 2, 2010
Plaintiff-Appellee,
V
No. 292587
Calhoun Circuit Court
LC No. 2001-004982-FC
MICHAEL DEAN CARAWAY,
Defendant-Appellant.
Before: O’CONNELL, P.J., and SERVITTO and SHAPIRO, JJ.
SHAPIRO, J. (concurring).
In light of the opinions in People v Doxey, 263 Mich App 115; 687 NW2d 360 (2004)
and People v Michielutti, 266 Mich App 223, 225; 700 NW2d 418, rev’d in part on other
grounds, 474 Mich 889 (2005), and our Supreme Court’s order in People v Dailey, 469 Mich
1019; 678 NW2d 439 (2004), I believe I am bound to concur with the majority. I write
separately, however, to point out the lack of clarity as to the status of People v Schultz, 435 Mich
517; 460 NW2d 505 (1990) and respectfully invite our Supreme Court to consider whether the
issue requires clarification.
Schultz was the last time the Supreme Court gave plenary consideration to the question of
whether a defendant was entitled to take advantage of Legislative changes to the punishments
found in MCL 333.7401 when his or her offense was committed prior to the amendment of the
statute. In that case, the Supreme Court reviewed the effect of 1987 PA 275, 1988 PA 47 and
1989 PA 143, “all of which mitigate[d] the terms of punishment . . . for the manufacture,
delivery or possession of controlled substances.” Id. at 526. The defendants in Schultz all
committed their controlled substance offenses before the passage of the relevant mitigating
statute, but were sentenced after the relevant statute took effect. Therefore, the issue in Schultz
was whether the defendants were to be sentenced pursuant to the statutory punishment in place at
the time they committed the offense, or pursuant to the more lenient statutory punishment in
place at the time they were sentenced. Id. at 525. The Supreme Court held that the more lenient
punishment in effect at the time of sentencing was to be imposed. Id. at 533. The Court
explained that the general saving statute, MCL 8.4a, does not require that a defendant be
sentenced under the punishment in place when he committed the crime if the statutory
punishment is reduced prior to the subject defendant’s sentencing. It contrasted this with the fact
that the saving statute does not allow a person charged with a crime to take advantage of a repeal
of the subject statute or modifications of its elements:
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the Legislature has expressed its intent that conduct remains subject to
punishment whenever a statute imposing criminal liability either is repealed
outright or reenacted with modification . . . . [However, section 8.4a] does not
indicate that the Legislature intended the statute prior to amendment to provide
the terms of punishment where an amendatory act mitigates the authorized terms
of punishment but continues to proscribe the same conduct. [Id. at 528-529.]
More than a decade later, a related issue came before this Court in People v Thomas, 260
Mich App 450; 678 NW2d 631 (2004).1 The defendant in Thomas alleged that he was entitled to
resentencing under the amended version of MCL 333.7401, asserting that he was entitled to such
relief based on Schultz. Id. at 457-458. However, given that the defendant in Thomas was
sentenced before the effective date of the ameliorative amendment, id. at 458-459, it was clear
that the defendant did not fall within Schultz, as in Schultz the issue was whether the lower
sentencing scheme applied to defendants sentenced after the effective date of the change.
Indeed, in Thomas, the defendant was sentenced long before the Legislature ever passed the
ameliorative statute, let alone its effective date.2 260 Mich App at 458-459.
Curiously, however, Thomas, never discussed this clear distinction from Schultz. Instead,
Thomas held that it need not follow Schultz as it “was a plurality.” Id. at 457 n 1.3 The Supreme
Court denied leave to appeal without explanation and so did not indicate whether it viewed
Thomas as distinguishable from Schultz, or if it viewed Schultz as non-precedential. 471 Mich
868 (2004).
Two years later, in Dailey, 469 Mich at 1019, the Supreme Court considered an
application for leave from an unpublished opinion of this Court, in which the defendant had pled
guilty under MCL 333.7401(2)(a)(iii). People v Dailey, unpublished opinion per curiam of the
Court of Appeals, issued August 26, 2003 (Docket No. 239683), p 1. A panel of this Court had
concluded that the defendant was entitled to resentencing on grounds not relevant to this
discussion, and so vacated the defendant’s sentence and remanded for resentencing. Id. In
footnote 1, the panel concluded that when the defendant was resentenced, he would be entitled to
the benefit of the lower sentences under the amended version of MCL 333.7401 which had come
into effect since his original sentencing:
1
This is the case upon which the majority relies.
2
The defendant was sentenced April 24, 2002. The legislation was not approved by the
Governor until December 25, 2002, with an effective date of March 1, 2003. 2002 PA 665.
3
I question the conclusion that Schultz lacked a majority analysis. Justice BOYLE, whose
concurrence provided the fourth vote, clearly agreed with the critical area of the lead opinion’s
analysis. Although she did not rely specifically on the majority’s interpretation of MCL 8.4a,
she agreed that “had the Legislature thought of what they wanted done this result would have
been their answer.” Id. at 533 (BOYLE, J., concurring). Thus, there were four votes—a
majority—for the view that the Legislature intended that statutes ameliorating draconian drug
sentences were to be applied at all sentencings after the effective date of the statutes.
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2002 PA 665, effective December 26, 2002, made extensive revisions to
MCL 333.7401. MCL 333.7401(2)(a)(iii) now provides that possession with intent to
deliver 50 grams or more but less than 450 grams of a controlled substance is
punishable by imprisonment for not more than twenty years or a fine of not more than
$250,000.00, or both. As a general rule, the proper sentence is that which was in
effect at the time the offense was committed. See People v Schultz, 435 Mich 517,
530; 460 NW2d 505 (1990). The amended version of MCL 333.7401(2)(a)(iii)
enacted while this case was pending on appeal is ameliorative in that it eliminates the
requirement that the sentencing court impose a minimum term of not less than ten
years. On remand, defendant is entitled to seek resentencing under the amended
version of MCL 333.7401(2)(a)(iii). See People v Shinholster, 196 Mich App 531,
533-534; 493 NW2d 502 (1992); People v Sandlin, 179 Mich App 540, 543-544; 446
NW2d 301 (1989). [Id., pp 1-2.]
Our Supreme Court denied leave to appeal, but vacated footnote 1, concluding that it was
inconsistent with MCL 769.34(2) [which] 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 to MCL
333.7401. [Dailey, 469 Mich at 1019.]
The import of this order is not wholly clear. First, it neither overrules nor discounts the
precedential authority of Schultz. Second, it relies on language from 769.34, a statute dealing
with sentencing guidelines which, by its own limiting language, has no application to crimes
carrying determinate sentences. MCL 769.34(5).
In 2005, this Court, in a published opinion, relied on the order in Dailey to support its
holding that an ameliorative sentencing amendment to MCL 333.7401 “operates prospectively
only and that the trial court erroneously applied the amended sentencing provisions” to a
defendant whose sentencing, but not whose crime, occurred after the effective date of the
relevant amendment. Doxey, 263 Mich App at 123. The Supreme Court denied leave without
comment. 472 Mich 878 (2005). This view was further reinforced in Michielutti, 266 Mich App
at 225, when, citing Thomas and Doxey, this Court held that “we have squarely resolved this
issue, determining that the abolition of the mandatory minimum sentence was intended to apply
prospectively only.”4 Given this chain of post-Schultz caselaw, I believe that, absent further
4
It should also be noted that the defendants in both Doxey and Michielutti were not foreclosed
from other retroactive relief, as the relevant amendment provided that each of those defendants
“may avail [himself] of the parole provisions of the revised statute.” Michielutti, 266 Mich App
at 225; Doxey, 263 Mich App at 122. Indeed, the Doxey Court relied on the existence of those
provisions to reach its conclusion of prospective application of the amended statute. Doxey, 263
Mich App at 122. However, these parole provisions provide no relief to the instant defendant
because MCL 791.234 does not provide for parole for persons who violated MCL
333.7401(2)(a)(i), unless they were sentenced for life. MCL 791.234(7)(b) and (c). Having been
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direction from the Supreme Court, I must concur that defendant is not entitled to the benefits of
the ameliorative changes in sentencing provided for in the amendment to MCL 333.7401.
However, given that Schultz has never been overruled and that its reasoning remains sound,5 I
respectfully suggest that we would be well-served if the Supreme Court would provide
clarification on this issue.
/s/ Douglas B. Shapiro
sentenced to a term of 20 years, rather than for life, this defendant is ineligible for the parole
relief available in Doxey and Michielutti.
5
Indeed, the Michielutti Court recognized that
the fundamental tenets in Schultz remain good law: The Legislature intentionally
granted sentencing courts greater discretion to fashion an appropriate sentence for
these violations, and in light of a dramatic and ameliorative change in legislative
policy, courts should determine whether an offender’s case merits application of
the Legislature’s newfound leniency. [266 Mich App at 229.]
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