People v. Wright

Archer, J.

We granted leave to appeal limited to the issue whether People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), which held that where an indeterminate sentence is required by statute, the minimum sentence imposed may not exceed two-thirds of the maximum sentence, applies to sentencing imposed on a person convicted as an habitual offender.

We hold that any sentence for a term of years imposed pursuant to § 10 of the habitual offender *86act, MCL 769.10; MSA 28.1082,1 is subject to the rule that the minimum term of years may not exceed two-thirds of the maximum term of years. Accordingly, we affirm the judgment of the Court of Appeals, which modified the defendant’s sentence in compliance with the two-thirds rule of People v Tanner.

i

The defendant, Kenneth Duane Wright, pled guilty to one count of criminal sexual conduct in the first degree and to a second count of being an habitual offender, second offense. In exchange for the defendant’s guilty plea, the prosecution agreed to recommend a maximum term of imprisonment *87of thirty years, but "retained] its right to recommend the minimum sentence.”2

The defendant was subject to receive an enhanced sentence of imprisonment pursuant to the habitual offender act, MCL 769.10; MSA 28.1082. He was sentenced under the act to serve a prison *88term of not less than twenty-eight nor more than thirty years in prison.

In the Court of Appeals, the defendant asserted, inter alia, that his sentence violated the rule of People v Tanner, supra, in that the minimum term exceeded two-thirds of the maximum term. The Court of Appeals granted defendant relief on this issue and modified his sentence to a term of not less than twenty nor more than thirty years in prison.3

The prosecutor appealed, seeking to reverse the Court of Appeals modification of the defendant’s sentence. We granted the prosecutor’s application for leave to appeal.4 We affirm the decision of the Court of Appeals.

ii

The question presented requires this Court to give effect to the language of § 10 of the habitual offender act, in light of the legislative purpose in drafting and subsequently amending the statute. This Court has stated:

Once legislative intent is discerned, it must be given effect, even if doing so might appear to conflict with the letter of the statute. " '[A] thing which is within the spirit of a statute is within the statute, although not within the letter; and a thing within the letter is not within the statute, unless within the intention.’ ” [People v Stoudemire, 429 Mich 262, 266; 414 NW2d 693 (1987). Citation omitted.]

A review of this Court’s holding and rationale in People v Tanner, supra, together with fundamen*89tal principles of statutory construction, leads to the conclusion that the Legislature intended to provide a meaningful interval between minimum and maximum sentences imposed pursuant to § 10 of the act.

A

In People v Tanner, the defendant, who had pleaded guilty to manslaughter, was sentenced to serve fourteen years, eleven months to fifteen years in prison. The Court addressed itself to the purely legal question whether the defendant’s sentence was in fact "indeterminate,” as contemplated by the provisions of the indeterminate sentence act.5 Tanner, supra at 688. The Court stated:

Thus, turning to the precise proposition involved, we are convinced that 30 days is not a sufficient interval of time to guarantee that the corrections authorities will be able to exercise their jurisdiction or judgment with any practicality. The net effect of such severe judicial limitation on indeterminate sentencing is to frustrate the intended effect of indeterminate sentencing.
Convinced as we are, that a sentence with too *90short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act. [Emphasis added. Id. at 689-690.]

This cogent and concise statement of policy provides for fundamental fairness in the sentencing process without undue restriction of trial judges’ ability to tailor sentences to fit the individual defendant.

Similar policy considerations exist with respect to repeat offenders. The ability of correctional authorities to consider subsequent developments in setting the actual date of release remains vital to the functions of an effectivé criminal justice system.6 In amending the habitual offender act, the Legislature sought to incorporate this policy into the sentencing of habitual offenders through elimination of determinate sentences.

B

As amended by 1978 PA 77, § 10 of Michigan’s habitual offender act provides:

(2) 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 fraction thereof and the *91sentence so imposed shall be considered an indeterminate sentence. [MCL 769.10(2); MSA 28.1082(2).]

Prior to the 1978 amendment, the statute provided only for a term of imprisonment for habitual offenders bearing a certain relationship to the longest term prescribed for the underlying felony.7 There was no requirement in the prior statute that the court impose both a minimum and maximum sentence. Accordingly, the prior statute was interpreted to allow the imposition of a determinate sentence on an habitual offender.8 In re Wilson, 295 Mich 179, 184; 294 NW 145 (1940); People v Ungurean, 51 Mich App 262, 267; 214 NW2d 873 (1974), lv den 395 Mich 805 (1975).

Appellant contends that the Legislature’s use of the phrase "shall be considered an indeterminate sentence” in the amended version of the statute, *92merely indicates that if the sentence in fact has a minimum and a maximum term, it will be considered an indeterminate sentence, and nothing more. We are wholly unpersuaded.

If the Legislature had not been concerned with providing a significant period of indeterminacy in sentences imposed pursuant to the habitual offender act, there would have been no need to amend the statute. It is axiomatic that when the Legislature effects a change in the provisions of a statute, a presumption arises that the Legislature intends a substantive change in the law. Lawrence Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205; 13 NW2d 260 (1944); 1A Sands, Sutherland Statutory Construction (4th ed), § 22.30, p 265. See also Sam v Balardo, 411 Mich 405; 308 NW2d 142 (1981); Detroit Edison Co v Janosz, 350 Mich 606, 613; 87 NW2d 126 (1957).

When a term has received past judicial interpretation, the Legislature is presumed to have intended the same meaning. People v Powell, 280 Mich 699, 703; 274 NW 372 (1937). The Legislature’s use of the phrase "indeterminate sentence” in § 10(2) of the act, expresses an intent to incorporate that term into the statute in its familiar legal sense. Accordingly, it must be presumed that the Legislature intended to use the phrase "indeterminate sentence” as defined by this Court in People v Tanner, supra. The Legislature employed the phrase "indeterminate sentence” with the requirement immediately preceding it that "the court shall fix the length of both the minimum and maximum sentence.” Its intent was to provide for indeterminate sentences with a meaningful interval between the minimum and maximum term. It would be disingenuous for this Court not to acknowledge this obvious intent.

Since the 1978 amendment of the habitual of*93fender act, the Court of Appeals has, with one exception, uniformly held that habitual offenders must receive indeterminate sentences with a minimum term of no more than two-thirds of the maximum. People v Stevens, 138 Mich App 438; 360 NW2d 216 (1984); People v Roby, 145 Mich App 138; 377 NW2d 366 (1985), lv den 424 Mich 887 (1986); People v Morin, 146 Mich App 629; 381 NW2d 416 (1985); contra People v Freeney, 166 Mich App 128; 419 NW2d 754 (1988). See also People v Langham, 101 Mich App 391; 300 NW2d 572 (1980), lv den 410 Mich 892 (1981) (a determinate or “flat” sentence held improper under the habitual offender act).9 The Legislature has declined to disturb the holdings of this Court and the Court of Appeals, which require a meaningful interval of discretion for corrections authorities where an indeterminate sentence is required by statute. In light of the Legislature’s acquiescence to the statutory interpretation and policy rationale set forth in People v Tanner, we continue to adhere to the analysis and decision therein.

CONCLUSION

We hold that any sentence for a term of years imposed pursuant to § 10 of the habitual offender act, MCL 769.10; MSA 28.1082, is subject to the rule that the minimum term of years may not exceed two-thirds of the maximum term of years. Therefore, we affirm the judgment of the Court of Appeals, modifying the defendant’s sentence to *94comply with the two-thirds rule of People v Tanner.

Riley, C.J., and Levin, Brickley, Cavanagh, and Griffin, JJ., concurred with Archer, J.

(1) If a person has been convicted of a felony, an attempt to commit a felony, or both, whether the conviction occurred in this state or would have been for a felony in this state if the conviction obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:

(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or in section 1 of chapter 11, may place the person on probation or sentence the person to imprisonment for a maximum term which is not more than IV2 times the longest term prescribed for a first conviction of that offense or for a lesser term.

(b) If the subsequent felony is punishable upon a first conviction by imprisonment for life, then the court, except as otherwise provided in this section or in section 1 of chapter 11, may place the person on probation or sentence the person to imprisonment for life or for a lesser term.

(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by Act No. 196 of the Public Acts of 1971, as amended, being sections 335.301 to 335.367 of the Michigan Compiled Laws.

(2) 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 fraction thereof and the sentence so imposed shall be considered an indeterminate sentence.

The prosecutor’s reservation of the right to recommend a minimum sentence in the future was apparently a surprise to the defendant. At the session of the court wherein the defendant pleaded guilty, the court attempted to ascertain whether the defendant understood the plea bargain. After the prosecutor recited the terms of the agreement, the following colloquy occurred between the court and the defendant:

The Court: And do you understand what has been said?
The Defendant: Yes, sir, but it was my understanding that the prosecution was going to recommend 30 years as a maximum sentence and I was to plead as a second offender, but until now I knew nothing about retaining the right to recommend whatever minimum.
The Court: Well, I will read it again. The prosecution will recommend the 30-year maximum sentence and retain its right to recommend the minimum sentence.
The Defendant: Yes, sir.

Several months later at the hearing on the defendant’s motion to withdraw his guilty plea, this exchange occurred between defendant and his appellate counsel:

Q. [Counsel]: All right. Sir, will you explain to the Court in your own words why you feel that you had ineffective assistance of counsel?
A. [Defendant]: Well, as [trial defense counsel] started explaining some of the legal procedures, such as giving a guilty plea to the Court, and the, he tried to explain the guidelines to me and the one-third, I think it is called the Turner Rule [sic] or something like that. He, I don’t think he gave me enough, how should I say it. A reasonable explanation, you know, for guidelines and Turner Rule and all that. And I wasn’t really given enough time to make a decision, a decision, I am talking about a proper decision, five minutes I don’t believe is enough time to make a decision that is going to—going to last the rest of my life. And that is what I was given each time was about five or ten minutes. [Emphasis added.]

Thus, it appears that defense counsel and defendant relied on Tanner in their plea-bargain considerations.

People v Wright, unpublished opinion per curiam of the Court of Appeals, decided December 29, 1986 (Docket No. 90412).

People v Wright, 430 Mich 856 (1988).

Sec. 8. When a person is convicted for the first time for the commission of a felony, and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence. Before or at the time of imposing the sentence the judge shall ascertain by examination of the convict on oath, or otherwise, and by other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of the convict, which facts and other facts which appear to be pertinent in the case, the judge shall cause to be entered upon the minutes of the court. [MCL 769.8; MSA 28.1080.]

See 3 ABA Standards for Criminal Justice (2d ed), Commentary on Standard 18-4.3, pp 18-265 to 18-266. The American Bar Association recommends that the minimum term for habitual offenders be fixed in the same manner as for nonhabitual criminals. 3 ABA Standards for Criminal Justice (2d ed), Standard 18-4.4(b)(iii), p 18-276. The aba recommends indeterminate sentencing in general, with a provision for flat minimum terms for sentences under three years. For the longer, indeterminate term, the aba recommends an increasing interval of indeterminacy as the maximum sentence increases. 3 ABA Standards for Criminal Justice (2d ed), Standard 18-4.3, pp 18-263 to 18-264.

Prior to the 1978 amendment, § 10 of the habitual offender act provided as follows:

A person, who after having been convicted within this state of a felony, or an attempt to commit a felony, or, under the laws of any other state, government or country, of a crime which if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction as follows: If the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person may be placed on probation or sentenced to imprisonment for a term not more than IV2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court; if the subsequent felony is such that, upon a first conviction the offender might be punished by imprisonment for life then such person may be placed on probation or sentenced to imprisonment for life or for any lesser term in the discretion of the court. [MCL 769.10; MSA 28.1082. Emphasis added.]

Only a person actually charged and convicted as an habitual offender pursuant to MCL 769.13; MSA 28.1085 was subject to receive a determinate sentence. Brinson v Genesee Circuit Judge, 403 Mich 676, 684; 272 NW2d 513 (1978).

Although the Court in Langham did not specifically address the issue whether the Tanner rule applied to sentences under the habitual offender act, it must be noted that upon determining that a flat sentence of eight years was improper, the panel did not remand for resentencing. Rather, it amended the flat term to an indeterminate sentence of five years, four months to eight years, consistent with the rule of Tanner.