Opinion
360938
03-16-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRNDEN LAMIR PATTERSON, Defendant-Appellant.
UNPUBLISHED
Houghton Circuit Court LC Nos. 22-003286-FH; 22-003287-FH; 22-003288-FH; 22-003289-FH
Before: GLEICHER, C.J., and K. F. KELLY and LETICA, JJ.
PER CURIAM.
This appeal concerns legislative enactments raising the age for an individual to be considered a juvenile in criminal matters. The questions before us are whether the various amendments apply retroactively and whether retroactive application would violate the Ex Post Facto Clauses of the state and federal constitutions as applied to this defendant. We hold that the statutes do apply retroactively but that this does not amount to an Ex Post Facto violation, and affirm the circuit court's ruling.
I. BACKGROUND
Between May and July 2021, Brnden Lamir Patterson allegedly committed four felony offenses. Patterson was 17 years old at that time; he turned 18 on September 10, 2021. MCL 712A.2(a)(1), as amended by 2018 PA 58, effective June 12, 2018, provided that the family division of the circuit court had "[e]xclusive original jurisdiction" in proceedings involving "a juvenile under 17 years of age," where the juvenile had "violated any . . . law of the state." See In re Seay, 335 Mich.App. 715, 720; 967 N.W.2d 883 (2021). MCL 764.27, as amended by 1996 PA 418, effective January 1, 1998, provided, "if a child less than 17 years of age is arrested, with or without a warrant, the child shall be taken immediately before the family division of circuit court of the county where the offense is alleged to have been committed," and "if during the pendency of a criminal case against a child in a court in this state it is ascertained that the child is less than 17 years of age, the court shall immediately transfer the case, together with all papers connected with the case, to the family division of circuit court of the county where the offense is alleged to have been committed." Effective January 2, 1998, as adopted by 1996 PA 409, MCL 712A.3(1) further provided:
If during the pendency of a criminal charge against a person in any other court it is ascertained that the person was under the age of 17 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the person resides.
At no time during the relevant events was Patterson under the age of 17. Accordingly, at the time of his arrest, and based on the existing statutory language, his case fell within the jurisdiction of the criminal division of the circuit court.
During the pendency of these proceedings, however, the relevant statutes changed twice based on a "Raise the Age" legislative package. The question below and on appeal is whether Patterson was entitled to be adjudicated as a juvenile in the family division of the circuit court under the initial iteration of these new statutes or prosecuted as an adult in the criminal division of the circuit court as provided in subsequent corrective legislation.
In 2019, the Legislature amended the relevant statutes. With the enactment of 2019 PA 109, effective October 1, 2021, MCL 712A.3(1) provided:
If during the pendency of a criminal charge against a person in any other court it is ascertained that the person was under the age of 18 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the person resides.
MCL 712A.2(a)(1) was amended contemporaneously to provide "[e]xclusive original jurisdiction" in the family division of the circuit court "in proceedings concerning a juvenile under 18 years of age" in which the juvenile had committed a crime. 2019 PA 113, effective October 1, 2021. MCL 764.27 was similarly amended to provide for the immediate presentation before or transfer to the family division of any criminal matter involving a person under the age of 18. 2019 PA 103, effective October 1, 2021.
This amendment to MCL 712A.2(a)(1) did not apply to Patterson. As he had already turned 18 before the amendment took effect, the proceedings did not at that time "concern[] a juvenile under 18 years of age." And as Patterson was 18, the amended MCL 764.27 did not require his presentation before or transfer to the family division of the circuit court. MCL 712A.3(1), on the other hand, required a transfer to the family division because "[d]uring the pendency of" the charges against Patterson, the court "ascertained" that Patterson was under the age of 18 when he allegedly committed the offenses. The court complied with that language and transferred Patterson's case to the family division of the circuit court in October 2021.
The Legislature quickly adopted an additional change. With the enactment of 2021 PA 118, effective November 30, 2021, MCL 712A.3(1) now provides:
For an offense occurring before October 1, 2021, if during the pendency of a criminal charge against an individual in any other court it is ascertained that the individual was under the age of 17 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the individual resides. For an offense occurring on or after October 1, 2021, if during the pendency of a criminal charge against an individual in any other court it is ascertained that the individual was under the age of 18 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the individual resides.
Neither MCL 712A.2 nor MCL 764.27 was amended. Because the subject offenses "occur[ed] before October 1, 2021," Patterson would only be within the jurisdiction of the family division if he "was under the age of 17 at the time of the commission of the offense[s]." He was not. Accordingly, the family division transferred Patterson back to the criminal division.
To recap, at the time the subject offenses were committed, MCL 712A.2(a)(1), MCL 712A.3(1), and MCL 764.27 provided for a 17-year-old defendant to be prosecuted as an adult. Accordingly, the prosecutor brought the charges against Patterson in district court. Before a preliminary examination could be conducted, several public acts took effect, providing for the transfer of criminal cases involving individuals under the age of 18 to the family division of the circuit court. This matter was transferred to the family division at that time. Patterson's term in the family division was short-lived. Following the enactment of 2021 PA 118, Patterson's consolidated files were transferred back to the district court.
On January 7, 2022, Patterson waived his right to a preliminary examination and was arraigned in the criminal division of the circuit court in four felony cases. Four days later, Patterson filed a motion to dismiss the cases for lack of jurisdiction. He contended that as applied to him, 2021 PA 118 was an unconstitutional, ex post facto law. As he was 17 years old when he allegedly committed the subject offenses, Patterson contended that jurisdiction belonged in the family division under the legislative package that took effect on October 1, 2021.
The circuit court denied Patterson's motion. The court outlined the legislative changes that occurred while Patterson's charges were pending and described when and why Patterson's case was transferred between courts. Although these changes impacted Patterson, the court determined that 2021 PA 118 was not an unconstitutional ex post facto law.
Ex post facto essentially means that the government can't apply a law to an individual that didn't exist at the time the individual allegedly committed the crime. The November 30 modification didn't do that as relates to [Patterson]. Instead, it caused [Patterson] to be subject to the law that was in effect at the time he allegedly committed the involved crimes. That's not ex post facto laws.
And, so, even if the statutes which we're talking about were retrospective, it doesn't affect the ruling appropriate to the proceeding. The November 30 [enactment] did not change the law as it existed at the time these offenses were allegedly committed. It didn't make those offenses and the ramifications thereof more detrimental to [Patterson]. And, consequently, the November 30 amendment or modification is not ex post facto.
Patterson filed a motion for reconsideration, but was again denied relief. This Court then granted Patterson's interlocutory application for leave to appeal. People v Patterson, unpublished order of the Court of Appeals, entered August 2, 2022 (Docket No. 360938).
II. ANALYSIS
The first question we must ask is whether 2021 PA 118 was intended to apply retroactively.
The prosecution contends that 2019 PA 109 did not apply to Patterson in the first instance as it took effect after Patterson committed his offenses and after he turned 18. This position is inconsistent with the language of the statute, however. The version of MCL 712A.3(1) in effect under 2019 PA 109 provided, "If during the pendency of a criminal charge against a person in any other court it is ascertained that the person was under the age of 18 at the time of the commission of the offense, the other court shall transfer the case without delay." A court must transfer a case if at any time while the charge is pending, the court discovers that the defendant was under the age of 18 when the offense was committed.
See People v Lowell, 250 Mich. 349, 356, 360-361; 230 N.W. 202 (1930).
Retroactive application of legislation presents problems of unfairness because it can deprive citizens of legitimate expectations and upset settled transactions. We have therefore required that the Legislature make its intentions clear when it seeks to pass a law with retroactive effect. In determining whether a law has retroactive effect, we keep four principles in mind. First, we consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event. Third, in determining retroactivity, we must keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute. [LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich. 26, 3839; 852 N.W.2d 78 (2014) (cleaned up).]
Overall, however, the main focus is on legislative intent.
In determining whether a statute should be applied retroactively or prospectively only, the primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle.... [S]tatutes are presumed to operate prospectively unless the contrary intent is clearly manifested. [Frank W Lynch &Co v Flex Techs, Inc, 463 Mich. 578, 583; 624 N.W.2d 180 (2001) (quotation marks and citations omitted).]
If a statute impairs vested rights, creates a new obligation, imposes a new duty, or attaches a disability with respect to past transactions, the Legislature's likely intent is prospective application only. See Franks v White Pine Copper Division, 422 Mich. 636, 671-674; 375 N.W.2d 715 (1985).
The main principle of statutory construction is that the plain language of the statute controls. And "the Legislature has shown on several occasions that it knows how to make clear its intention that a statute apply retroactively." Frank W Lynch, 463 Mich. at 584. The Legislature has expressly stated in certain statutes that an act "shall be applied retroactively," MCL 141.1157, or that an act "shall be given retroactive application," MCL 324.21301a(2). There are other clues that the Legislature intends a statute to apply retroactively. "An amendment may apply retroactively where the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regarding its meaning." Mortgage Electronic Registration Sys, Inc v Pickrell, 271 Mich.App. 119, 126; 721 N.W.2d 276 (2006). "It is well settled . . . that when an amendment is enacted soon after controversies arise regarding the meaning of the original act, it is logical to regard the amendment as a legislative interpretation of the original act." Detroit v Walker, 445 Mich. 682, 697; 520 N.W.2d 135 (1994) (cleaned up).
By enacting 2021 PA 118 only two months after 2019 PA 109 took effect, the Legislature clearly intended to clarify the Raise the Age statute and resolve any controversy over its meaning. 2021 PA 118 directs that 2019 PA 109's new age proscriptions apply only after the effective date of that statute. 2021 PA 118 therefore was intended to apply retroactively.
Retroactive application of 2021 PA 118 does not create an ex post facto dilemma.
Both the Michigan and United States Constitutions prohibit ex post facto laws. U.S. Const, art I, § 10; Const 1963, art 1, § 10. A law is considered ex post facto if it: "(1) punishes an act that was innocent when the act was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for a [committed] crime; or (4) allows the prosecution to convict on less evidence." People v Earl, 495 Mich. 33, 37; 845 N.W.2d 721 (2014). The prohibitions on ex post facto laws "assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning" as well as prevent the government from imposing arbitrary and vindictive legislation. Weaver v Graham, 450 U.S. 24, 2829; 101 S.Ct. 960; 67 L.Ed.2d 17 (1981). See also The Federalist No. 44 (Madison) (Rossiter ed, 1961), p 282 (stating that "ex post facto laws . . . are contrary to the first principles of the social compact and to every principle of sound legislation"); The Federalist No. 84 (Hamilton) (Rossiter ed, 1961), pp 511-512 (observing that ex post facto laws have historically been "the favorite and most formidable instruments of tyranny"). [People v Betts, 507 Mich. 527, 542; 968 N.W.2d 497 (2021).]
The third category of ex post facto challenge is at issue here-Patterson contends that his punishment would be improperly increased if he is tried as an adult instead of adjudicated as a juvenile under a retroactive application of 2021 PA 118. However, "[c]ritical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver, 450 U.S. at 30 (emphasis added). Application of 2021 PA 118 simply returns Patterson to the legal status applicable when he allegedly committed the charged offenses-to be under the jurisdiction of the criminal division of the circuit court. The act does not increase punishment beyond that prescribed at the time the crimes were committed. This is not unconstitutional.
As there existed no Ex Post Facto violation, the circuit court properly denied Patterson's claims that the court lacked jurisdiction over him and declined to transfer the matter back to the family division.
We affirm.
LETICA, J. (concurring).
I join in the majority's disposition but would reach the same resolution, although on other grounds.
I. LEGAL PRINCIPLES
The appellate court reviews questions of statutory interpretation de novo. People v Propp, 508 Mich. 374, 383; 976 N.W.2d 1 (2021). To interpret the statute, the plain language is examined because it provides the most reliable evidence of legislative intent. Id. Effect must be given to every word, phrase, and clause, and we must avoid an interpretation that would make any part of the statute surplusage or nugatory. People v Miller, 498 Mich. 13, 25; 869 N.W.2d 204 (2015). The Legislature, when enacting or amending a statute, is presumed to know of existing statutes and laws. People v Ackah-Essien, 311 Mich.App. 13, 27; 874 N.W.2d 172 (2015); People v Rosecrants, 88 Mich.App. 667, 670; 278 N.W.2d 713 (1979).
"Whether a statute applies retroactively presents a question of statutory construction that this Court reviews de novo." People v Conyer, 281 Mich.App. 526, 528-529; 762 N.W.2d 198 (2008). The intent of the Legislature governs the determination whether a statute is applied prospectively or retroactively. Id. at 529. "The general rule of statutory construction in Michigan is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect." People v Russo, 439 Mich. 584, 594; 487 N.W.2d 698 (1992). Stated otherwise, there is a presumption that a statute operates prospectively unless the contrary intent is clearly declared. Conyer, 281 Mich.App. at 529.
The general rule is that the statute in force at the time of the commission of the crime governs. See People v Jackson, 179 Mich.App. 344, 351; 445 N.W.2d 513 (1989), vacated in part on other grounds 437 Mich. 866 (1991). MCL 8.4a addresses repeal of any or part of a statute and provides:
The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
In addition to the repeal of statutes, MCL 8.4a also applies to the amendment of statutes. Jackson, 179 Mich.App. at 351.
This Court has declined to allow a party to obtain the benefit of a statutory amendment that took effect after the crime was charged. In People v Gravedoni, 172 Mich.App. 195, 197; 431 N.W.2d 221 (1988), the defendant was charged with fraudulent use of electric service in excess of $50, MCL 750.282. He was arraigned on March 9, 1984. MCL 750.282 was amended effective April 12, 1984. Under the amended statute, the prosecutor was required to prove that the amount of service that was obtained by fraudulent means was in excess of $500 to convict of a felony. Thus, the statutory amendment elevated the monetary amount of electric service used to constitute a felony. Nonetheless, this Court declined to void defendant's conviction in light of the amendment, noting the application of MCL 8.4a and the absence of legislative action, stating:
Equally without merit is defendant's contention that his conviction is invalid because the amendment to MCL 750.282 . . . effective April 12, 1984, elevated from an excess of $50 to an excess of $500 the amount of services which the prosecution must prove was obtained by fraudulent means in order to convict for a felony. MCL 8.4a . . . unambiguously provides that unless there is a specific provision voiding a former law, any actions pending on the effective date of a new law are saved. Since defendant was arraigned on March 9, 1984, the action against him was pending on the effective date of the amended statute. The Legislature's omission in the amendment to MCL 750.282 . . . to expressly provide for release or relinquishment of the repealed portion of the statute necessarily validates defendant's conviction under the statute as it formerly existed. [Gravedoni, 172 Mich.App. at 197-198.]
Additionally, in People v McDonald, 13 Mich.App. 226, 228-229; 163 N.W.2d 796 (1968), the defendant was convicted of breaking and entering in the nighttime. After the defendant was convicted, the Legislature eliminated the statutory distinction between nighttime and daytime breaking and entering, MCL 750.110. Consequently, the defendant claimed that any prosecution for offenses under the nighttime provision had been repealed, were now "barred by the legislative action," and his conduct was effectively no longer subject to punishment. Id. This Court noted that prior caselaw held that the effect of striking a former statute was to obliterate it entirely and to preclude any prosecution under the repealed provision; but it was further observed that the Legislature was free to enact a savings statute, and later did act, to preclude this result.1 Indeed, in the next session, the Legislature responded to the legal holding by enacting MCL 8.4a, and restricted the effects of a repeal or partial amendment unless "the repealing act shall so expressly provide." Id. at 229. This Court examined the amendment to MCL 750.110, in light of the savings provision of MCL 8.4a, and determined that the elimination of the distinction between nighttime and daytime breaking and entering did not "expressly relinquish any penalty incurred," and the amendment did not defeat prosecution of those "who violated the former provision by breaking and entering in the nighttime."
In his first issue, defendant alleged that the November 30, 2021 amendment to MCL 712A.3, 2021 PA 118, could not apply to him because of the title. The statutory titles and headings serve as useful navigational tools but cannot override the plain language of the text of the statute. People v Bruce, 504 Mich. 555, 575-576; 939 N.W.2d 188 (2019). Rather, we examine the language of the statute to determine its meaning. Id.; see also Propp, 508 Mich. at 383. Defendant's challenge on this ground is without merit.
Defendant contends that the amendment to MCL 712A.3 through the "Raise the Age" legislation was intended to make a sweeping change to the juvenile and criminal code and designed to ameliorate consequences for acts committed by 17-year-olds. Therefore, it was designed to apply to pending cases. However, defendant's reliance on People v Schultz, 435 Mich. 517; 460 N.W.2d 505 (1990), to support this contention is misplaced. A majority of our Supreme Court must agree on a ground for the decision in order to constitute binding precedent over future cases. People v Tanner, 496 Mich. 199, 214 n 6; 853 N.W.2d 653 (2014). Plurality opinions, in which a majority of the justices do not agree on the rationale to support the holding, do not constitute binding precedent under the doctrine of stare decisis. Negri v Slotkin, 397 Mich. 105, 109; 244 N.W.2d 98 (1976); see also People v Fontenot, 333 Mich.App. 528, 534 n 2; 963 N.W.2d 397 (2020), vacated in part on other grounds 509 Mich. 1073 (2022). Because a majority did not agree on a basis to reach a holding, the Schultz decision does not constitute binding precedent. At the time defendant allegedly committed the charged offenses, he was 17 years old. MCL 712A.3(1) then provided that:
Additionally, the Schultz decision did not address the criminal code but changes to minimum sentences under the Public Health Code. Schultz, 435 Mich. at 531-532 (Opinion by ARCHER, J.).
If during the pendency of a criminal charge against a person in any other court it is ascertained that the person was under the age of 17 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the person resides.
This version of MCL 712A.3(1) controls because it was in force at the time of the commission of the crimes allegedly committed by defendant. Jackson, 179 Mich.App. at 351.
In 2019, the Legislature amended MCL 712A.3(1) with the enactment of 2019 PA 109, effective October 1, 2021, to state:
If during the pendency of a criminal charge against a person in any other court it is ascertained that the person was under the age of 18 at the time of the commission of the offense, the other court shall transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court of the county in which the other court is situated or in which the person resides.
Defendant was 17 years old when he allegedly committed felonies between May 19, 2021 and July 19, 2021. He turned 18 years old on September 10, 2021. Despite meeting the age requirement of the amended version of MCL 712A.3(1) to obtain a transfer to the family division of the circuit court, defendant was not governed by this version of MCL 712A.3(1). The amended version was not in effect at the time of the commission of the alleged offenses, Jackson, 179 Mich.App. at 351, and the Legislature failed to provide for release or relinquishment of the repealed portion of the statute thereby validating application of the statute as it formerly existed, Gravedoni, 172 Mich.App. at 197-198. Thus, defendant's reliance on the amendment of MCL 712A.3(1), effectuated by 2019 PA 109, is without merit.
Lastly, defendant recognizes that MCL 712A.3(1) was subsequently amended by 2021 PA 118 and submits that this amendment, when compared with the amendment effectuated by 2019 PA 109, violates the prohibition against ex post facto laws. Because MCL 712A.3(1), as amended by 2019 PA 109, did not apply to defendant, this challenge does not entitle him to appellate relief.
Moreover, defendant's contention that the breadth of the 2019 amendment to MCL 712A.3, 2019 PA 109, was intended to ameliorate consequences to 17-year-olds is belied by the most recent amendment to MCL 712A.3, 2021 PA 118.
For these reasons, I would affirm.