People v. Buehler

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED FEBRUARY 6, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 131943

NICHOLAS JAMES BUEHLER,

Defendant-Appellee.
_______________________________

PER CURIAM.

This case concerns when a trial court may impose a sentence of probation

where the properly scored sentencing guidelines compel a term of imprisonment.

Under the Michigan Sentencing Guidelines, the minimum sentence must be within

the appropriate sentence range unless the court states substantial and compelling

reasons to depart.1 In this case, the trial court sentenced defendant to probation,

when the appropriate minimum sentence range was scored at 42 to 70 months.

The Court of Appeals held that probation was a valid alternative to the prison

sentence called for by the guidelines. We disagree. Because defendant’s

1
MCL 769.34(3).
probationary sentence is not within the appropriate sentence range and the trial

court failed to articulate substantial and compelling reasons for the downward

departure, we reverse the judgment of the Court of Appeals and remand the case to

the trial court to state substantial and compelling reasons on the record for the

departure or to sentence defendant within the appropriate sentence range.

Facts and Procedural History

The prosecutor charged defendant with resisting and obstructing a police

officer,2 indecent exposure,3 and being a sexually delinquent person.4 Pursuant to

a plea agreement, defendant pleaded nolo contendere to the indecent exposure

charge and guilty to the sexually delinquent person charge in exchange for the

dismissal of the remaining charge. Defendant did not challenge the guidelines

scoring that produced a sentence range of 42 to 70 months. The trial court stated

its intention to downwardly depart from the guidelines and impose a sentence of

36 months’ probation. In support of the probationary sentence, the trial court

noted defendant’s problem with alcohol and his ability to conform his behavior to

the law when not inebriated. The prosecutor moved for resentencing, arguing that,

2
MCL 750.81d (1).
3
MCL 750.335a.
4
MCL 750.10a.

under MCL 750.335a,5 the court must sentence defendant to the indeterminate

sentence of one day to life. The trial court disagreed, affirming the sentence of

probation.

The prosecutor filed an application for leave to appeal in the Court of

Appeals. The prosecutor abandoned the argument that the indeterminate sentence

provided in MCL 750.335a was mandatory and argued that defendant’s sentence

was not proper under the Michigan Sentencing Guidelines because the trial court

failed to articulate substantial and compelling reasons for the departure. The

Court of Appeals initially vacated the judgment of sentence and ordered

resentencing in an unpublished order, entered September 12, 2003 (Docket No.

250160). However, the panel granted defendant’s motion for reconsideration,

vacated its previous order, and denied the prosecutor’s application for leave to

appeal in an unpublished order, entered October 23, 2003 (Docket No. 250160).

The prosecutor sought leave to appeal, and this Court, in lieu of granting leave to

5
At the time defendant committed his crime, MCL 750.335a provided:

Any person who shall knowingly make an open or indecent
exposure of his or her person or of the person of another is guilty of
a misdemeanor, punishable by imprisonment for not more than 1
year, or by a fine of not more than $1,000.00, or if such person was
at the time of the said offense a sexually delinquent person, may be
punishable by imprisonment for an indeterminate term, the
minimum of which shall be 1 day and the maximum of which shall
be life: Provided, That any other provision of any other statute
notwithstanding, said offense shall be triable only in a court of
record.

appeal, remanded the matter to the Court of Appeals for consideration as on leave

granted.6

On remand, the Court of Appeals held that MCL 750.335a gave courts

broad discretion in sentencing defendants convicted of indecent exposure.

Further, the Court held that “a term of probation is also a valid alternative to

which a trial court may, in its discretion, sentence a defendant convicted of

indecent exposure as a sexually delinquent person.”7 The panel relied on MCL

767.61a, which provides that a person convicted of indecent exposure may receive

“any punishment provided by law for such offense.” The Court of Appeals

reasoned that because the general probation statute allows a court to place a

defendant on probation for any felony or misdemeanor “other than murder,

treason, criminal sexual conduct in the first or third degree, armed robbery, or

major controlled substance offenses,”8 probation was a sentence “authorized by

law,” and thus, proper.

When the prosecutor again sought leave to appeal in this Court, in lieu of

granting leave to appeal, we vacated the published Court of Appeals judgment and

remanded to that Court a second time to consider (1) whether the trial court

6
469 Mich 1019 (2004).
7
People v Buehler, 268 Mich App 475, 482; 710 NW2d 475 (2005)
(Buehler I).
8
MCL 771.1(1).

articulated substantial and compelling reasons for a departure from the appropriate

sentence range and (2) whether the legislative sentencing guidelines or the

indeterminate sentence prescribed by MCL 750.335a controlled the sentence that

may be imposed.9 On second remand, the Court of Appeals again affirmed

defendant’s sentence.10 The Court held that the trial court did not articulate

substantial and compelling reasons to depart from the appropriate guidelines range

and that the more recently enacted guidelines control, as opposed to the

indeterminate sentence provided for in MCL 750.335a, when a court decides to

impose a sentence of imprisonment. Nonetheless, the panel affirmed defendant’s

sentence, reaffirming the portion of its previous opinion that held that

probationary sentences are a valid “alternative” sentence. The prosecutor has

again filed an application for leave to appeal in this Court. In lieu of granting

leave to appeal, we reverse the judgment of the Court of Appeals for the reasons

stated below.

Standard of Review

9
474 Mich 1081 (2006).
10
People v Buehler (On Remand), 271 Mich App 653; 723 NW2d 578
(2006) (Buehler II). Judge Zahra replaced retired Judge Gage on the panel.

This Court reviews questions of statutory interpretation de novo.11 This

Court reviews a trial court’s decision to depart from the guidelines for an abuse of

discretion.12

Analysis

Under the Michigan Sentencing Guidelines,13 “the minimum sentence

imposed by a court of this state for a felony enumerated in part 2 of chapter XVII

committed on or after January 1, 1999 shall be within the appropriate sentence

range under the version of those sentencing guidelines in effect on the date the

crime was committed.”14 Indecent exposure by a sexually delinquent person is “a

felony enumerated in part 2 of chapter XVII.”15 As noted, defendant did not

dispute that the appropriate sentence range was 42 to 70 months’ imprisonment.

Furthermore, there is no question that defendant’s probationary sentence does not

fall within that range.16 Under the guidelines, “[a] court may depart from the

appropriate sentence range established under the sentencing guidelines set forth in

11
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).
12
Id. at 269.

13
MCL 769.34 et seq.

14
MCL 769.34(2) (emphasis added).

15
MCL 777.16q.

16
See Babcock, supra, discussing whether the trial court articulated

substantial and compelling reasons for imposing probation when the guidelines
range was 36 to 71 months.
(continued…)

[MCL 777.1 et seq.] if the court has a substantial and compelling reason for that

departure and states on the record the reasons for departure.”17 We agree with the

Court of Appeals that the trial court in this case failed to state substantial and

compelling reasons for a departure. Therefore, defendant’s sentence is invalid

under the sentencing guidelines. 18

The Court of Appeals did not end its analysis at that point. Instead, the

Court held that probation is a valid “alternative” sentence for any crime not

specifically excepted from probation.19 The panel in Buehler II relied on the

discussion of MCL 750.335a and MCL 771.1 in Buehler I. The Buehler I panel

(…continued)

17
MCL 769.34(3).
18
We agree with the panel in Buehler II that the Michigan Sentencing
Guidelines control over the version of MCL 750.335a in force when defendant
committed his crime. We also agree that it is unnecessary to determine whether
the recent amendment of MCL 750.335a, 2005 PA 300, has altered this conclusion
for future offenders. Therefore, we too express no opinion on that issue.
19
MCL 771.1(1):

In all prosecutions for felonies or misdemeanors other than
murder, treason, criminal sexual conduct in the first or third degree,
armed robbery, or major controlled substance offenses, if the
defendant has been found guilty upon verdict or plea and the court
determines that the defendant is not likely again to engage in an
offensive or criminal course of conduct and that the public good
does not require that the defendant suffer the penalty imposed by
law, the court may place the defendant on probation under the
charge and supervision of a probation officer.

examined the language of MCL 750.335a, which stated at the time of defendant’s

offense:

The panel in Buehler I held that this statute “indicates a clear intent by the

Legislature to provide a discretionary and alternative sentencing scheme for

persons convicted of indecent exposure.”20 The panel is correct insofar as MCL

750.335a states that courts have discretion to sentence individuals convicted of

indecent exposure to a fine or imprisonment. However, that conclusion does not

support the notion that a defendant convicted of the crime of indecent exposure by

a sexually delinquent person is entitled to probation. The Legislature has actually

limited sentencing courts’ discretion for individuals convicted of that crime by

listing it in MCL 777.16q and thereby making it subject to the mandatory

sentencing guidelines. The Legislature has further limited the courts’ discretion

by classifying indecent exposure by a sexually delinquent person as a Class A

20
Buehler I, supra at 480.

felony, which carries a minimum sentence range of 21 to 35 months.21 Under the

guidelines, the sentencing court must sentence defendant within that range or

articulate on the record substantial and compelling reasons for a departure.

Both panels held that courts may avoid the guidelines for any probationable

felony. The probation statute and the sentencing guidelines must be construed

together because “statutes that relate to the same subject or that share a common

purpose are in para materia and must be read together as one.”22 When there is a

conflict between statutes that are read in para materia, the more recent and more

specific statute controls over the older and more general statute.23 Significantly,

the panel in Buehler II found that MCL 750.335a and the sentencing guidelines

were in para materia and that the more recently enacted guidelines control.

Unfortunately, neither panel applied the same analysis to the probation statute and

the sentencing guidelines. The sentencing guidelines were enacted after the

probation statute, and they are more specific in that they provide a detailed and

mandatory procedure for sentencing involving all enumerated crimes. Therefore,

the sentencing guidelines control for a crime that could be punished under the

guidelines or with probation.

21
MCL 777.62.

22
Buehler II, supra at 658.

23
See Imlay Twp Primary School Dist No 5 v State Bd of Ed, 359 Mich

478; 102 NW2d 720 (1960).

The panel in Buehler II correctly noted that probation is available for all

nonenumerated crimes; however, this fact does not lead to the conclusion that

sentencing courts have unfettered discretion to impose probation for all such

crimes. For crimes not subject to the sentencing guidelines, such as simple

indecent exposure, a sentencing court would have the option of imposing one of

the sentences listed in the statute (one year or less of imprisonment or a fine of

$1,000 or less) or if the court determines that the defendant is not likely to be a

recidivist and that the public good does not require the statutory penalty, the court

may sentence the defendant to probation.24

The calculus changes, however, if the offense is subject to the mandatory

sentencing guidelines. The minimum sentence for any crime listed in part two of

chapter XVII committed after January 1, 1999, must be within the minimum

guidelines sentence range. In some instances, the Legislature has determined that

probation is a permissible sentence within the sentence range, such as when the

guidelines call for an intermediate sanction.25 However, the guidelines do not

indicate that probation is available for ranges that require a minimum term of

imprisonment. Therefore, probationary sentences constitute a downward

24
MCL 771.1(1).
25
MCL 769.31(b): “‘Intermediate sanction’ means probation or any
sanction, other than imprisonment in a state prison or state reformatory, that may
lawfully be imposed.”

departure from any sentencing guidelines range that does not permit the

imposition of intermediate sanctions. In such cases, if the sentencing court desires

to impose a probationary sentence, the court must articulate substantial and

compelling reasons for the downward departure on the record. Because the

sentencing court did not properly sentence defendant under the guidelines, the

sentence of probation is invalid.

Conclusion

Defendant’s probationary sentence is a departure from the appropriate

guidelines sentence range, and the trial court failed to articulate substantial and

compelling reasons for the departure on the record as required by MCL 769.34(3).

Because defendant’s sentence is invalid, we reverse the judgment of the Court of

Appeals and remand the case to the Ottawa Circuit Court for an articulation of

substantial and compelling reasons on the record or resentencing.

Clifford W. Taylor
Michael F. Cavanagh
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 131943

NICHOLAS JAMES BUEHLER,

Defendant-Appellee.
_______________________________

WEAVER, J. (concurring). I concur in the result reached by the majority,

but I write separately to note that as stated in my partial dissent and partial

concurrence in People v Babcock, 469 Mich 247, 280-284; 666 NW2d 231 (2003),

a trial court need only state “a substantial and compelling reason for that departure

. . . .” MCL 769.34(3). Because the trial court departed from the mandatory

sentencing guidelines, but did not state on the record “a substantial and compelling

reason” for departure, defendant’s sentence is invalid under the sentencing

guidelines.

Elizabeth A. Weaver

People v. Buehler

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