People v. Fernandez

417 N.W.2d 540, 164 Mich. App. 485

• Court: Michigan Court of Appeals
• Decided: November 16, 1987
• Docket: Docket 98521
• Status: Published

Opinions

Per Curiam.

On appeal, the Supreme Court has reversed the decision of this Court¹ and held that a mandatory life sentence is required on conviction of conspiracy to commit first-degree murder under MCL 750.157a; MSA 28.354(1). The Supreme Court further provided as follows:

We remand the case to the Court of Appeals for briefing and decision on whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder is eligible for parole consideration under MCL 791.234(4); MSA 28. 2304(4) and, if so, the proper retroactive effect of such a decision.[²]

The "lifer law” set forth in MCL 791.234(4); MSA 28.2304 (4) provides as follows:

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, subject to the following conditions ....

Both defendant and the prosecutor agree that after serving ten years defendant is eligible for parole consideration under MCL 791.234(4); MSA 28.2304(4) where, as here, he was sentenced to life imprisonment for conspiracy to commit first-degree murder. The lifer law statute does not specifically exclude persons convicted of conspiracy to commit first-degree murder and sentenced to life imprisonment from the jurisdiction of the parole board after serving ten calendar years of the sentence. The conspiracy statute, MCL 750.157a; MSA 28.354(1), provides for punishment by penalty equal to that which could be imposed if defendant had been convicted of committing the crime he conspired to commit. The first-degree murder statute, MCL 750.316; MSA 28.548, provides that a person convicted of first-degree murder shall be punished by imprisonment for life. This statute does not, however, state that such a sentence of life imprisonment is nonparolable. What makes first-degree murder a nonparolable life offense is MCL 791.234(4); MSA 28.2304(4). In other words, first-degree murder is nonparolable because it is specifically excluded from the above statute, while conspiracy to commit first-degree murder is not.

Furthermore, Proposal b does not preclude application of the lifer law to persons convicted of conspiracy to commit first-degree murder. In 1984, in People v Johnson,3 the Supreme Court held that Proposal b had no application to fixed or life sentences. Therefore, as the Supreme Court recognized in the within case:

Thus, there is no apparent restriction arising from Proposal b on application of the "lifer law” to a life sentence imposed for conspiracy to commit first-degree murder.[⁴]

We agree with both defendant and the prosecutor and conclude that a person sentenced to life for conspiracy to commit first-degree murder is subject to the jurisdiction of the parole board after serving ten calendar years.

We further believe that this decision, which is essentially a restatement and clarification of existing law, should receive full retroactive effect.⁵

1 People v Fernandez, 143 Mich App 388; 372 NW2d 567 (1985).

2 People v Fernandez, 427 Mich 321, 343; 398 NW2d 311 (1986).

3 421 Mich 494, 498; 364 NW2d 654 (1984).

4 Fernandez, supra, 427 Mich at 333.

5 See People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979); People v Szymanski, 102 Mich App 745; 302 NW2d 316 (1981).