Opinion
No. 137652.
May 1, 2009.
Court of Appeals No. 275215.
Leave to Appeal Granted.
I would grant leave to appeal to consider whether the sentencing guidelines apply to MCL 324.3115(4). On the one hand, MCL 777.13c states that the guidelines apply to specifically listed felonies, including the offense specified in MCL 324.3115(4), which suggests that the guidelines are applicable and that a conviction under § 3115(4) carries a five-year indeterminate maximum sentence. On the other hand, MCL 324.3115(4) states that the trial court "shall" impose a five-year term of imprisonment, which apparently communicates a determinate sentence, thereby rendering the guidelines inapplicable pursuant to MCL 769.34(5). Moreover, whether MCL 324.3115(4) effectively imposes a determinate sentence for purposes of MCL 769.34(5) is placed into issue by the Legislature's use of substantially more definite language in other criminal statutes imposing determinate sentences, e.g., MCL 750.227b (possession of a firearm during the commission of a felony) (the defendant "shall" be sentenced to a "mandatory term" that "shall not be suspended" and the defendant is "not eligible for parole"); MCL 750.316(1) and MCL 791.234(6) (murder) (the defendant "shall be punished by imprisonment for life" and is "not ellgible for parole"); MCL 750.543f(2) (terrorism) (the defendant "shall" be punished by imprisonment for life "without eligibility for parole"). Because of the substantial consequences for defendant's term of incarceration, I would grant leave to appeal to address this issue.
KELLY, C.J., and CAVANAGH, J. We join the statement of Justice MARKMAN.