Opinion
Docket No. 52046.
Decided June 17, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
Zimostrad, Wenzloff, Allsopp Zimostrad, P.C., for defendant.
Before: CYNAR, P.J., and BRONSON and D.F. WALSH, JJ.
Defendant was charged with delivery of a controlled substance (marijuana), MCL 333.7401; MSA 14.15(7401). On March 31, 1980, he pled guilty to the offense of attempt to possess a controlled substance (marijuana) with intent to deliver, MCL 333.7401; MSA 14.15(7401), MCL 750.92; MSA 28.287. On May 5, 1980, defendant was sentenced to serve six months in jail, fined $250, placed on probation for five years, and ordered to pay $1,250 in costs.
Defendant appeals by right and raises three issues, none of which require reversal.
There is no merit to defendant's argument that the trial court erred in imposing costs in the amount of $1,250. Although case law holds that an assessment of costs in a criminal case must be reasonably related to the cost of prosecution, it is recognized that costs of probation may be a factor. People v Teasdale, 335 Mich. 1; 55 N.W.2d 149 (1952). Specific language in MCL 771.3(3); MSA 28.1133(3) authorizes the trial court to consider all expenses, direct and indirect, which the public has been or may be put to in connection with the apprehension, examination, trial, and probationary oversight of the probationer.
Contrary to defendant's assertion, the trial judge did explain his basis for assessing the amount in question on the record at the motion for resentencing. As the trial court noted, the costs of probationary supervision for five years is alone sufficient justification for the costs imposed.
There is no merit to defendant's argument that the trial court lacked authority to impose a period of probation in excess of two years. Although the crime to which defendant pled guilty is labeled a two-year misdemeanor, the determination of whether it is a misdemeanor or a felony for purposes of the limitations on length of probation in MCL 771.2; MSA 28.1132 is governed by MCL 761.1(g); MSA 28.843(g), People v Stiles, 99 Mich. App. 116, 121; 297 N.W.2d 631 (1980). Since the allowable maximum sentence exceeds one year, the crime in question is a felony and the five-year limit on probation applies.
Defendant's challenge to the constitutionality of the statute under which he was convicted was specifically rejected in People v Trupiano, 97 Mich. App. 416, 420; 296 N.W.2d 49 (1980), lv den 409 Mich. 895 (1980), and is therefore without merit.
Affirmed.
Cynar, P.J., and D.F. Walsh, J., concurred.
I agree with the majority except insofar as they find no merit to defendant's argument that the trial court lacked authority to impose a probationary period in excess of two years. In my opinion, this assertion is meritorious. The issue of whether two-year misdemeanors are to be treated as felonies or misdemeanors has arisen in various contexts in this Court. None of this Court's opinions, however, has affirmatively acknowledged what I perceive to be a split of authority on this particular issue.
By MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c) possession of marijuana with the intent to deliver is a felony for which a maximum penalty of four years imprisonment may be imposed. MCL 750.92; MSA 28.287 provides that one who attempts to commit a felony is guilty of a misdemeanor punishable by not more than two years imprisonment. Further, MCL 771.2(1); MSA 28.1132(1) states that a defendant convicted of an offense which is not a felony shall not be placed on probation for a period in excess of two years.
Under the general definitional provisions of both the current Penal Code and the Code of Criminal Procedure, the offense for which defendant was convicted would be classified as a felony. See MCL 750.7; MSA 28.197 and MCL 761.1(g); MSA 28.843(g). The question to be resolved, then, is whether either or both of these definitional sections control explicit statutory provisions defining certain offenses for which the maximum penalty is two years in the state prison as misdemeanors.
The first decision I find dealing with this problem is People v Bernard Smith, 81 Mich. App. 561, 569-571; 266 N.W.2d 40 (1978), rev'd on other grounds 406 Mich. 926; 277 N.W.2d 506 (1979). In Bernard Smith, the same attempt statute under consideration here was being considered. This Court applied the longstanding rule of construction that a more specific statute controls a general statutory provision and held that an attempt under MCL 750.92; MSA 28.287 was a misdemeanor. As such, the Court held that under the Supreme Court holding in People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974), it was reversible error for the trial court to allow defendant to be impeached by evidence of an attempted larceny in a building conviction. In reversing, the Supreme Court noted that at the time of retrial MRE 609 would be controlling. Since under MRE 609(1) the use of the conviction would be proper, there was consequently no need for a new trial. The Supreme Court neither approved nor disapproved the Bernard Smith majority's analysis of the felony-misdemeanor distinction.
Recently, in People v Alford, 104 Mich. App. 255; 304 N.W.2d 541 (1981), another panel of this Court, again relying on the principle that a specific intention expressed in a statute controls a general intention expressed by an act, reached the conclusion that consecutive sentences were inappropriate where a defendant was convicted of attempted larceny in a building while another felony charge was still pending.
I agree with the analyses of both Bernard Smith and Alford as to whether the Legislature's specific designation of an offense carrying a two-year maximum penalty should be controlling. However, I also believe there are other good reasons supporting the soundness of this view. I will first set forth these other reasons, and I will then consider a number of decisions rendered by this Court reaching the opposite conclusion.
The cardinal tenet of statutory construction is to ascertain and effectuate the will of the Legislature. Melia v Employment Security Comm, 346 Mich. 544, 562; 78 N.W.2d 273 (1956), People v Ingram, 99 Mich. App. 410, 414; 297 N.W.2d 684 (1980). An important and well-settled rule in seeking to effectuate the legislative intent is that the statute is to be construed in such a way that every word of it is rendered effective and no part of it is rendered nugatory. Melia, supra, Deshler v Grigg, 90 Mich. App. 49, 53-54; 282 N.W.2d 237 (1979), lv den 407 Mich. 875 (1979).
The Legislature must have meant something when it designated certain offenses with two-year maximum penalties as misdemeanors. Presumably, the Legislature believed that these crimes were more serious than the typical misdemeanor but not of such seriousness that all of the consequences attendant to a felony conviction should come into play. This intention can only be effectuated, and the explicit designation of "misdemeanor" made meaningful, if these offenses are treated as misdemeanors in all respects except as concerns the maximum term of imprisonment or where the Legislature has explicitly otherwise provided. A contrary conclusion renders the Legislature's categorical use of the term "misdemeanor" without effect. Why would it call these offenses misdemeanors if it intended every consequence of a felony conviction to attach except sentencing maximums? The maximum sentence for every crime is set forth in the Penal Code. Many, if not most, maximum sentences are specified within the specific statutory provision making the act a crime. Some offenses are merely categorized by the Penal Code as being a felony or a misdemeanor. If the former, MCL 750.503; MSA 28.771 makes the maximum penalty four years imprisonment. If the latter, MCL 750.504; MSA 28.772 makes the maximum penalty 90 days in county jail. Had the Legislature merely wanted the offenses in question to have two-year maximum sentences, it did not need to call them misdemeanors. Indeed, this designation alone provides no affirmative assistance in reaching the intended result. Instead, all the Legislature had to do was to specify that these offenses had two-year maximum sentences and, by MCL 750.7; MSA 28.197, they would be felonies.
I also rely on the doctrine that any ambiguity in a criminal or penal statute is to be construed in favor of lenity. Bell v United States, 349 U.S. 81, 83-84; 75 S Ct 620, 622; 99 L Ed 905, 910-911 (1955), People v Robinson, 80 Mich. App. 559, 566; 264 N.W.2d 58 (1978). To the extent that I am unable to definitely state that the Legislature intended two-year misdemeanors to be exempt from other consequences of a felony conviction, I rest on the rule of lenity. If the Legislature actually intended something else, it was incumbent upon it to express this intent with greater clarity than is evident here.
I now turn to a discussion of what I consider to be the major flaw in the decisions going the other way. The majority decisions in People v Rosecrants, 88 Mich. App. 667; 278 N.W.2d 713 (1979), People v Davis, 89 Mich. App. 588; 280 N.W.2d 604 (1979), and People v Stiles, 99 Mich. App. 116; 297 N.W.2d 631 (1980), are all premised on the assumption that the two-year offenses defined as misdemeanors in the Penal Code are controlled by the general definitional language of MCL 761.1(g); MSA 28.843(g) in the Code of Criminal Procedure. Thus, these panels do not construe the codes as a unified whole. For instance, in Stiles, supra, 121, a panel of this Court held:
"For purposes of the penal code alone, the crime of obstructing or assaulting a police officer is treated as a misdemeanor. MCL 750.479; MSA 28.747. However, application of the Code of Criminal Procedure results in the characterization of defendant's offense as a felony. MCL 761.1(g); MSA 28.843(g). Because the probation statute, MCL 771.2; MSA 28.1132, is part of the Code of Criminal Procedure, defendant's sentence of three years probation was permissible."
In my opinion, the Penal Code and the Code of Criminal Procedure are in pari materia and must be construed together so as to complement one another. The same general subject matter is the topic of both codes and in order to truly reflect the legislative intent they must be considered together. See People v Owens, 13 Mich. App. 469, 475-476; 164 N.W.2d 712 (1968), Doan v Kellogg Community College, 80 Mich. App. 316, 320-321; 263 N.W.2d 357 (1977). Furthermore, the lead opinion in Davis, supra, affirmatively shows that the Legislature intended the Penal Code and Code of Criminal Procedure to be construed in pari materia. In Davis, this Court noted that the habitual offender statute, MCL 769.12; MSA 28.1084, provided for supplementation as a third-time felony offender after three prior convictions for felonies or attempts to commit felonies. Thus, since larceny in a building is a felony, the attempt to commit this offense could serve as the basis for a habitual offender prosecution despite the fact that the attempted larceny is denominated a misdemeanor in the Penal Code.
Again, we are confronted with the question of what the Legislature meant by using certain language — in this case, the words "attempt to commit felonies". If every crime designated as a two-year misdemeanor in the Penal Code is a felony for purposes of the Code of Criminal Procedure, this language is meaningless. The only application the words "attempt to commit felonies" can have is to distinguish attempts to commit felonies and two-year misdemeanors as used in the Penal Code's statutory provisions concerning attempts. MCL 750.92; MSA 28.287. Thus, an attempt to commit a four-year felony, although denoted in MCL 750.92; MSA 28.287 as a misdemeanor, can nonetheless serve as an underlying offense in a habitual offender prosecution. If one adopts the view that a two-year misdemeanor is a felony for purposes of the Code of Criminal Procedure, however, the language in question is unnecessary and of no effect. As noted earlier, a construction rendering a portion of an act meaningless is disfavored. Melia, supra.
In Rosecrants, supra, 670, the majority noted that MCL 761.1(g); MSA 28.843(g) does not by its terms purport to alter the designated gradation of offenses set forth in the Penal Code. However, the Rosecrants panel found that the amendment to MCL 761.1; MSA 28.843 showed an intent to alter these grades and that the Legislature in amending a statute must be presumed to have knowledge of existing laws. Skidmore v Czapiga, 82 Mich. App. 689, 691; 267 N.W.2d 150 (1978), lv den 403 Mich. 810 (1978). In my opinion, this presumption should only be resorted to if all other doctrines of statutory construction fail to render a sensible meaning to the statute in question. Nonetheless, this same presumption could be applied to support my construction of what the Legislature meant by two-year misdemeanors. The habitual offender statutory provisions, MCL 769.10 et seq.; MSA 28.1082 et seq., were amended effective September 1, 1978. These provisions continue to refer to an attempt to commit a felony as the basis of an underlying offense for a habitual offender prosecution. As noted above, the attempt to commit a felony language is meaningless if a two-year misdemeanor as specified in the Penal Code is a felony for purposes of the Code of Criminal Procedure. I must presume that the Legislature was aware of MCL 761.1(g); MSA 28.843(g) and did not intend it to override the gradation of offenses used in the Penal Code since it continued to use the attempt to commit felony language in the habitual offender portions of the Code of Criminal Procedure.
I would affirm defendant's conviction, but modify his sentence by reducing the term of probation to two years.