People v. Jahner

*505Boyle, J.

I concur in the majority’s holding that a person sentenced to life imprisonment for conspiracy to commit first-degree murder, MCL 750.157a, 750.316; MSA 28.354(1), 28.548, is eligible for parole consideration pursuant to MCL 791.234(4); MSA 28.2304(4). I would, however, base my conclusion on the narrow ground that the three statutes in question evidence no legislative intent to exclude from Parole Board jurisdiction a person convicted of conspiracy to commit first-degree murder.

All four defendants were convicted of conspiracy to commit first-degree murder. The conspiracy statute provides in pertinent part:

[T]he person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [MCL 750.157a(a); MSA 28.354(l)(a).]

The punishment for first-degree murder is set forth in the statute describing that offense:

Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life. [MCL 750.316; MSA 28.548.]

Finally, the "lifer law” expressly precludes a *506person under sentence for first-degree murder from parole consideration:

A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board .... [MCL 791.234(4); MSA 28.2304(4).]

The "lifer law” on its face must be interpreted to bring within Parole Board jurisdiction persons convicted of conspiracy to commit first-degree murder. The enumeration of exclusions from the operation of the statute indicates that the statute should apply to all cases not specifically excluded. 2A Sands, Sutherland Statutory Construction (4th ed), § 47.23, p 194. Van Sweden v Van Sweden, 250 Mich 238, 241; 230 NW 191 (1930); Michigan Wolverine Student Co-operative, Inc v Goodyear, 314 Mich 590; 22 NW2d 884 (1946). The "lifer law” generally confers Parole Board jurisdiction over prisoners who have served ten years of their sentence, expressly excepting persons convicted of first-degree murder and major controlled substance offenses. MCL 791.234(4); MSA 28.2304(4). Because persons convicted of conspiracy to commit first-degree murder are not expressly excepted from the operation of the "lifer law,” it is reasonable to assume that the Legislature did not intend to preclude such persons from parole eligibility.

Even when a statute appears unambiguous on its face, it may be rendered ambiguous by its interaction with and relation to other statutes. 2A Sands, Sutherland Statutory Construction (4th ed), §46.04, pp 86-87. Taken together, the statutes *507considered in this case do not plainly reveal whether the Legislature intended to foreclose parole eligibility for those convicted of conspiracy to commit first-degree murder. The ambiguity revolves around the meaning of the word "penalty” in the conspiracy statute. The person convicted of conspiracy to commit first-degree murder is to be punished by the same "penalty” applied to one convicted for first-degree murder. The question is whether the "penalty” for conspiracy to commit first-degree murder should be construed as that described in the first-degree murder statute — life imprisonment — or whether it encompasses the sentence of life imprisonment and also the exclusion from parole eligibility contained in MCL 791.234(4); MSA 28.2304(4).

I believe that the more narrow interpretation accords with the structure and purpose of the statutes. The statutes defining conspiracy and first-degree murder, both contained in the Penal Code, address the punishment for those offenses. The "lifer law” is part of the Corrections Code1 and addresses the Parole Board, which may grant or *508deny clemency. The independent nature of sentencing and parole stems from the fact that these powers flow from different branches of government.2 In Michigan, the Legislature has created a Department of Corrections3 which is given exclusive jurisdiction over paroles, MCL 16.375, 791.204; MSA 3.29(275), 28.2274, although parole will not be granted if the sentencing judge or the judge’s successor files written objection to the granting of parole pursuant to MCL 791.234(4)(b); MSA 28.2304(4)(b).

Consistent with this division of functions we held in Lane v Dep’t of Corrections, Parole Bd, 383 Mich 50, 61; 173 NW2d 209 (1970), that while the trial court has discretion to determine minimum sentences, the Parole Board, within the statutes, possesses the same discretion to determine the length of parole. We further held in Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975), cert den 429 US 1108 (1977), that a trial judge need not inform a defendant of all sentencing consequences, but only of the maximum and any mandatory minimum sentence. I agree with the majority that *509"it would be inconsistent in the present context to find that the term 'penalty’ as it is used in the conspiracy statute extends to parole considerations.” (Ante, p 503).

The prosecution in Jones urges a broader interpretation of the word "penalty” as used in the conspiracy statute, citing Burrows v Delta Transportation Co, 106 Mich 582; 64 NW 501 (1895). In Burrows, this Court interpreted a statute which required fire screens over the smokestacks of wood-fueled vessels. Id., p 593. The statute provided that violation of its terms was a misdemeanor punishable by fine or imprisonment or both. Id., pp 593-594. The question was whether the word "penalty” in the title of the act fairly apprised the public that damages were recoverable under the act. Id., p 601. The Court answered in the affirmative, quoting from Grover v Huckins, 26 Mich 476, 482 (1873):

"The term 'penalty’ is used very loosely in statutes in some cases, and might without much strain of its ordinary meaning be held to embrace all the consequences visited by law upon the heads of those who violate police regulations.” [106 Mich 602.]

The rule quoted in Burrows is dicta in Grover v Huckins, supra. Moreover, Burrows did not involve any question concerning parole. It would be unwarranted to conclude from the general language in Burrows that the word "penalty” as used in the conspiracy statute encompasses parole considerations.

Absent evidence to the contrary, it would be error to assume that the Legislature intended to treat persons convicted of conspiracy to commit first-degree murder the same as persons convicted of first-degree murder with respect to parole. In *510enacting the conspiracy statute, the Legislature deemed conspiracy to commit a given offense sufficiently serious to warrant the punishment prescribed for the target offense. People v Fernandez, 427 Mich 321, 337; 398 NW2d 311 (1986). But clemency is a separate matter in which there might be reason to treat conspiracy differently from first-degree murder. Thus, we might hypothesize a case in which two persons form an agreement to commit murder, but then retreat from the plan in moral repugnance. The crime of conspiracy is complete "upon formation of the agreement,” People v Carter, 415 Mich 558, 568; 330 NW2d 314 (1982), and it has been held that a withdrawal after this point is ineffectual. People v Juarez, 158 Mich App 66, 73; 404 NW2d 222 (1987).4 Although the hypothetical individuals are guilty of conspiracy to commit first-degree murder and must receive a life sentence, Fernandez, supra, p 343, it seems unlikely that the Legislature intended a penalty of life imprisonment with no possibility of parole._

The Corrections Code was enacted in 1953 PA 232, which was entitled:

An act to revise, consolidate and codify the laws relating to probationers and probation officers as herein defined, to pardons, reprieves, commutations and paroles ... to create a state department of corrections, and to prescribe its powers and duties ....

The original version of the "lifer law” was contained in § 34 of the act:

Any convict who now is, or hereafter may be imprisoned in any 1 of the prisons or reformatories of this state under sentence for life or for any term of years, other than those so sentenced for life for murder in the first degree, and who shall have served 10 calendar years of such sentence, shall be subject to the authority and jurisdiction of the parole board and may be released on parole in the discretion of the parole board ....

*508Amendments to the "lifer law” were enacted in 1955 PA 107, 1957 PA 192,1958 PA 210, 1978 PA 81, and 1982 PA 314. The title to each amendment cites the purpose of 1953 PA 232 as stated in its original title.

Although it is within the inherent power of the judiciary to impose sentences in criminal cases within the limits established by legislative act, the matter of parole following the imposition of sentence is not a judicial function but is purely a legislative one. In other words, any power to grant paroles is not inherent in courts, but is dependent upon statute. [59 Am Jur 2d, Pardon and Parole, § 78, pp 67-68.]

The department is headed by a commission whose members are appointed by the Governor, with the advice and consent of the Senate. MCL 16.378; MSA 3.29(278). Members of the commission may be removed by the Governor with cause. MCL 791.201; MSA 28.2271. Thus, the Department of Corrections operates under the control of the Executive Branch. See Collins v Director, Dep’t of Corrections, 153 Mich App 477, 481; 395 NW2d 77 (1986), lv den 428 Mich 868 (1987), cert den 483 US 1026 (1987).

This opinion does not purport to pass on the rule stated in Juarez, supra.