Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
___________________________________________________________________________________________________________________________
FILED NOVEMBER 4, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 123658
DAVID LEE GARZA,
Defendant-Appellant.
_______________________________
MEMORANDUM OPINION
After assaulting a young woman in the parking lot of a
store near Monroe, the defendant pleaded guilty of criminal
sexual conduct in the second degree and indecent exposure.
MCL 750.520c, 750.335a. The circuit court sentenced the
defendant to a term of three to fifteen years in prison.1
The three-year minimum sentence was within the thirty-six-
to seventy-one-month recommendation stated in the
1
The defendant spent a long period in the county jail
awaiting disposition of this matter (his alternative was to
go back to an Ohio prison). Thus, for indecent exposure,
sentencing guidelines. MCL 777.64.2
The defendant applied to the Court of Appeals, which
denied leave to appeal.3 He then filed the present
application for leave to appeal in this Court.
The defendant argues that the first sentence of MCL
769.34(10) is unconstitutional. That measure requires the
Court of Appeals to uphold a minimum sentence that falls
within the guidelines range, provided that the guidelines
have been properly scored and the judge has not relied on
inaccurate information:
If a minimum sentence is within the
appropriate guidelines sentence range, the court
of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate
information relied upon in determining the
defendant’s sentence. A party shall not raise on
appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy
of information relied upon in determining a
sentence that is within the appropriate
guidelines sentence range unless the party has
raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to
he was sentenced to time already served.
2
This case fell into cell E-III of the class C grid
set forth in MCL 777.64.
3
Unpublished order, entered March 27, 2003 (Docket No.
246549).
2
remand filed in the court of appeals. [MCL
769.34(10) (emphasis supplied).]
The defendant asserts that this legislative directive
violates the constitutional principle of separation of
powers. Such a constitutional question we review de novo.
DeRose v DeRose, 469 Mich 320, 326; 666 NW2d 636 (2003).
In presenting this argument, the defendant relies on
the Constitution of this state:
The powers of government are divided into
three branches: legislative, executive and
judicial. No person exercising powers of one
branch shall exercise powers properly belonging
to another branch except as expressly provided in
this constitution. [Const 1963, art 3, § 2.]
He also notes that Articles I, II, and III of the United
States Constitution separately describe the legislative,
executive, and judicial power of the nation’s government.
Finally, the defendant cites cases--none
- on point--that
-
generally discuss the importance of this concept.
The difficulty with the defendant’s position is that a
mere statement of the principle of separation of powers
does not provide guidance regarding which powers belong to
which branch of government. Thus, the framers of both the
Michigan and United States constitutions stated at length
the responsibilities and prerogatives of each branch.
As we explained in People v Hegwood, 465 Mich 432,
436-437; 636 NW2d 127 (2001):
3
[T]he ultimate authority to provide for
penalties for criminal offenses is
constitutionally vested in the Legislature.
Const 1963, art 4, § 45. The authority to impose
sentences and to administer the sentencing
statutes enacted by the Legislature lies with the
judiciary. See, e.g., MCL 769.1(1). [Emphasis
supplied.]
In various eras, and with regard to various offenses, the
Legislature has chosen to delegate various amounts of
sentencing discretion to the judiciary. At present, for
instance, there are offenses with regard to which the
judiciary has no sentencing discretion,4 offenses about
which discretion is sharply limited,5 and offenses regarding
which discretion may be exercised under the terms set forth
in the sentencing guidelines legislation.6 In previous
years, before the 1999 effective date of the legislative
sentencing guidelines, the Legislature provided sentencing
discretion that in many instances was virtually without
limit.7
4
E.g., MCL 750.316 (first-degree murder), MCL 750.227b
(possession of a firearm while committing a felony).
5
E.g., MCL 333.7401 et seq. (controlled-substance
offenses).
6
See, generally, MCL 769.34 and MCL 777.1 et seq.
7
This Court's sentencing guidelines were in effect
during most of the 1980s and 1990s. Administrative Orders
1983-3, 1984-1, 1985-2, and 1988-4; 417 Mich cxxi (1983),
418 Mich lxxx (1984), 420 Mich lxii (1985), and 430 Mich ci
(1988). Pursuant to these orders, the sentencing court was
4
All this is for the Legislature to decide. In MCL
769.34, the Legislature plainly implemented a comprehensive
sentencing reform. The evident purposes included reduction
of sentencing disparity,8 elimination of certain
inappropriate sentencing considerations,9 acceptance of this
Court’s Tanner10 rule,11 encouragement of the use of
sanctions other than incarceration in the state prison
system,12 and resolution of a potential conflict in the
law.13 As part of that reform, the Legislature dealt
specifically, and in detail, with appellate review of
sentences. MCL 769.34(7)-(12). See People v Babcock, 469
Mich 247, 264-270, 273-274; 666 NW2d 231 (2003).
obliged to follow the procedure of “scoring” a case on the
basis of the circumstances of the offense and the offender,
and articulate the basis for any departure from the
recommended sentencing range the scoring produced. But
because the recommended ranges were not the product of
legislative action, a judge was not required to impose a
sentence within that range. People v Hegwood, 465 Mich
432, 438; 636 NW2d 127 (2001); People v Raby, 456 Mich 487,
496-7; 572 NW2d 644 (1998).
8
MCL 769.34(2), (3).
9
MCL 769.34(3).
10
People v Tanner, 387 Mich 683, 690; 199 NW2d 202
(1972).
11
MCL 769.34(2)(b).
12
MCL 769.34(4).
13
MCL 769.34(5).
5
Among the rules stated in MCL 769.34(7)-(12) is the
one to which the defendant objects--the Court of Appeals is
-
not to set aside minimum sentences that are within the
guidelines and that are based on accurate information. We
have not been presented with a persuasive argument that the
constitution of this state or of this nation bars the
Legislature from enacting such a measure; nor have we
located such an argument on our own. Accordingly, we
reject the defendant’s assertion that the first sentence of
MCL 769.34(10) is unconstitutional.14
For these reasons, we affirm the judgment of the Court
of Appeals. MCR 7.302(G)(1).
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
14
The defendant also argues that the circuit court
abused its sentencing discretion in imposing this sentence.
We reject this argument as well. The fifteen-year maximum
sentence is set by law, MCL 750.520c(2) and 769.8(1), and
the three-year minimum sentence (at the low end of the
range provided in the sentencing guidelines) must be upheld
under MCL 769.34(10).
6