People v. Jones

STEPHENS, EJ.

(concurring). The majority bases its conclusion with regard to the crime victims’ rights assessment exclusively on People v Earl, 297 Mich App 104; 822 NW2d 271 (2012). I acknowledge that I am compelled to follow Earl because it is binding precedent. MCR 7.215(J)(1). However, I write separately to note that, in my view, Earl’s reasoning is flawed and that the majority’s conclusions are therefore inconsistent with other, prior caselaw interpreting the Ex Post Facto Clause. Specifically, Earl concluded that the assessment is not a punishment and is therefore outside the ambit of the Ex Post Facto Clause of the Michigan Constitution. Id. at 114. In reaching this conclusion, Earl relied almost exclusively on one paragraph from People v Matthews, 202 Mich App 175, 177; 508 NW2d 173 (1993), in which this Court noted that the “assessment is not intended to be a form of restitution.. . .” However, because that sentence from Matthews was “not essential to the disposition of the case,” it constitute[d] obiter dicta and lack[ed] the force of a binding adjudication.” People v Crockran, 292 Mich App 253, 258; 808 NW2d 499 (2011). Indeed, unlike the majority and the Earl Court, I agree with defendants that the *660assessment is a punishment because the Legislature intended for it to be a punishment. See MCL 780.905; see also Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003). The majority’s conclusion is therefore contrary to prior Ex Post Facto Clause caselaw because the imposition of an additional $70 “increases [defendants’] punishment” for conduct occurring before the current version of the crime victims’ rights assessment statute took effect. People v Slocum, 213 Mich App 239, 243; 539 NW2d 572 (1995); see also In re Contempt of Henry, 282 Mich App 656, 681-684; 765 NW2d 44 (2009), People v Hill, 267 Mich App 345, 350-352; 705 NW2d 139 (2005).