Opinion
No. 340905
03-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MALCOLM LINDSEY IRWIN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wexford Circuit Court
LC No. 2017-011836-FH Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of resisting or obstructing a police officer, MCL 750.81d(1), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to zero days for the resisting and obstructing conviction, and two years for the felony-firearm conviction. Defendant appeals by right, and we affirm.
Defendant was acquitted of embezzlement by a public official over $50, MCL 750.175, and embezzlement of an agent between $1,000 and $20,000, MCL 750.174(4)(A).
Defendant argues on appeal that the felony-firearm statute is unconstitutional because it mandates a two-year sentence, in violation of the separation of powers doctrine. We disagree. Defendant did not raise this issue below. Unpreserved constitutional claims are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is warranted only if the plain error resulted in the conviction of an innocent defendant or if "the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." Id.
The felony-firearm statute, MCL 750.227b(1), provides: "A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony . . . is guilty of a felony and shall be punished by imprisonment for 2 years." The separation of powers doctrine is expressed in Const 1963, art 3, § 2, which provides as follows:
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.The three branches of government each play a role in determining the sentence for a crime, "namely, [] the Legislature defines the sentences, the court fashions and imposes individual sentences within the legislatively defined parameters, and the prosecutor brings charges against defendants that inevitably affect which sentences are available for the court to impose." People v Conat, 238 Mich App 134, 147; 605 NW2d 49 (1999).
Defendant argues that a sentence that has been mandated by the Legislature violates the separation of powers protection because it precludes the sentencing court from exercising judicial discretion in issuing an appropriate sentence. When sentencing defendant, the trial judge expressed that it was "unfortunate" that he did not have more discretion in sentencing defendant.
In Wayne Co Prosecutor v Recorder's Court Judge (People v Meeks), 92 Mich App 433, 442-443; 285 NW2d 318 (1979), this Court considered whether "the mandatory sentencing provision of the felony-firearm statute violate[s] the separation of powers clause of Const 1963, art. 3, s 2." This Court found that "[a]n argument that the mandatory nature of the sentence provision of the felony-firearm statute violates the separation of powers clause because it precludes a trial judge from exercising discretion in sentencing is without merit. The Legislature is free to retain or delegate sentencing discretion when defining offenses and setting punishment." Id. at 443, citing People v Hall, 396 Mich 650; 242 NW2d 377 (1976).
Defendant argues that the Legislature mandating a two-year sentence precludes trial courts from fashioning a sentence based on the characteristics of the offense and the offender. In the context of sentencing a defendant outside the guidelines range, the reasonableness of a sentence is determined by evaluating whether that sentence violated the principle of proportionality, "which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017), quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). However, the authority of trial courts to "exercise discretion in imposing sentences" may be "limited by the Legislature, which has the power to establish sentences." Conat, 238 Mich App at 147 (citations omitted). Sentences that are mandated by the Legislature "are presumptively proportionate and valid." People v DiVietri, 206 Mich App 61, 63; 520 NW2d 643 (1994), citing People v Williams, 189 Mich App 400, 403-404; 473 NW2d 727 (1991).
The constitution provides the Legislature with "the ultimate authority to provide for penalties for criminal offenses," Const 1963, art 4, § 45, and the judiciary has the "authority to impose sentences and to administer the sentencing statutes enacted by the Legislature." People v Hegwood, 465 Mich 432, 436-437; 636 NW2d 127 (2001) (emphasis added). The "Legislature has the exclusive power to determine the sentence prescribed by law for a crime," including mandatory sentences for certain crimes or a range of sentences, and trial courts issue sentences authorized by statute. Conat, 238 Mich App at 148-149. In People v Garza, 469 Mich 431, 435; 670 NW2d 662 (2003), the Court cited first-degree murder, MCL 750.316, and felony-firearm, MCL 750.227b, as examples of where the Legislature had permissibly exercised its authority to create "offenses with regard to which the judiciary has no sentencing discretion." The Legislature may "limit the sentencing discretion of the [] court" by legislating a mandatory sentence. Conat, 238 Mich App at 149. "Statutes are presumed to be constitutional . . . unless their unconstitutionality is clearly and readily apparent," People v Roberts, 292 Mich App 492, 497; 808 NW2d 290 (2011) (citation omitted), which defendant has not demonstrated. In this case, as the trial court recognized, it would have offended the separation of powers and usurped the Legislature's role had it set aside an unambiguous statute based on its view of the statute's fairness to this particular defendant. Devillers v Auto Club Ins Ass'n, 473 Mich 562, 591-592; 702 NW2d 539 (2005).
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra