People v. Johnson

364 N.W.2d 654, 421 Mich. 494

• Court: Michigan Supreme Court
• Decided: February 1, 1985
• Docket: 71296, (Calendar No. 3)
• Status: Published

Opinions

Kavanagh, J.

Defendant pleaded guilty to second-degree murder. MCL 750.317; MSA 28.549. Pursuant to a plea bargain, a charge of first-degree murder was dismissed. MCL 750.316; MSA 28.548. He was sentenced to life imprisonment.

The Court of Appeals considered and rejected asserted errors touching the plea-taking procedure and that Court’s ruling thereon is not challenged here. Rather defendant here argues the effect of "Proposal B” on the "lifer law” and claims that failure of the trial court to make certain that defendant was correctly informed thereon prevented an understanding plea as required by GCR 1963, 785.7.

We do not usually treat errors not asserted in the Court of Appeals. We address this question, however, because we are concerned with its implication in this and many other cases and confusion about it has such impact on our plea-taking procedure as to warrant our speaking to it at this time.

MCL 791.234(4); MSA 28.2304(4), popularly known as the "lifer law,” provides in pertinent part:

"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 ....”

Proposal B, an initiatory provision adopted by the voters in 1978 became MCL 791.233b; MSA 28.2303(3) and provided in relevant part:

"A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court which minimum term shall not be diminished by allowances for good time, special good time, or special parole.”

Among the crimes listed requiring service of a minimum term before parole is second-degree murder.

The prosecutor argues that Proposal B, despite its express provision that the legislation has application to "the minimum term imposed by the court,” must be read as applying to a life sentence. This is so, he maintains, because the minimum term of a life sentence is the natural life of the defendant. He relies on the authority of the opinion of the Attorney General, OAG 1979-1980, No 5583, pp 438, 441-442 (October 16, 1979), for this view, and its acceptance by the Court of Appeals in People v Cohens, 111 Mich App 788, 795; 314 NW2d 756 (1981).

We disagree.

The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v Vitali, 156 Mich 370; 120 NW 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.

Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years” it allows the imposition of a fixed sentence —life—or an indeterminate sentence — any number of years. We observed in People v Blythe, 417 Mich 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase "life or any term of years” as descriptive of the maximum sentence only. The sentence concepts "life” and "any term of years” are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.

We hold that Proposal B applies only to indeterminate sentences. Its express provisions are binding on the parole board, and the board may not release on parole, before the expiration of the minimum term fixed by the sentencing judge, any person given an indeterminate sentence for the crimes specified after the proposal’s effective date. It has no application to a fixed or life sentence.

The judgment of the Court of Appeals is affirmed.

Williams, C.J., and Levin, Brickley, and Cavanagh, JJ., concurred with Kavanagh, J.