Opinion
Docket No. 115480.
Decided November 21, 1989. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
State Appellate Defender (by Jennifer A. Pilette), for defendant on appeal.
Before: SHEPHERD, P.J., and DOCTOROFF and MARILYN KELLY, JJ.
Defendant pled guilty to a reduced charge of voluntary manslaughter. MCL 750.321; MSA 28.553. She was sentenced to three to fifteen years in prison. She appeals as of right, and we affirm.
Defendant was sentenced under the revised sentencing guidelines. She committed the crime prior to the revision of the guidelines. On appeal, she contends that the trial court's retroactive application of the revised guidelines misconstrues Administrative Order No. 1988-4, 430 Mich. ci (1988), and violates the provision against ex post facto legislation. US Const, art I, § 10, cl 1, Const 1963, art 1, § 10.
Initially we note that defendant failed to raise this issue in the trial court. Generally this Court does not address issues raised for the first time on appeal. However review may be appropriate where a significant constitutional question is presented. People v Calloway, 169 Mich. App. 810, 818; 427 N.W.2d 194 (1988).
Administrative Order No. 1988-4 provides that effective October 1, 1988, the trial court must use the revised guidelines when sentencing a defendant for an offense which they cover. Defendant argues that the court misinterpreted the order by applying the revised guidelines to an offense committed before October 1, 1988. We disagree.
The plain language of the order requires the use of the revised guidelines in every sentencing procedure after October 1, 1988. The previous administrative orders mandating the use of the first edition of the guidelines were rescinded as of October 1. The order is clear and unambiguous. See Issa v Garlinghouse, 133 Mich. App. 579, 581; 349 N.W.2d 527 (1984).
Next, defendant contends that retroactive application of the revised guidelines violates federal and state ex post facto prohibitions.
A criminal law is ex post facto where it is applied to events which occurred prior to its enactment and where it disadvantages the offender affected by the law. Miller v Florida, 482 U.S. 423, 430; 107 S Ct 2446; 96 L Ed 2d 351 (1987). Ex post facto prohibition applies to substantive matters, not to modes of procedure. Miller, 433. The prohibition serves two purposes: it restricts legislatures from enacting arbitrary or vindictive legislation and provides fair notice. Calder v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648 (1798); Miller, 429-430.
The Michigan sentencing guidelines do not increase the punishment for defendant's crime. They are a tool to assist the sentencing judge in the exercise of discretion. They do not convey substantive rights to defendant. People v Strunk, 172 Mich. App. 208, 210; 431 N.W.2d 223 (1988), lv den 432 Mich. 883 (1989). They do not create presumptive sentences. In fact, departure is encouraged. People v Ridley, 142 Mich. App. 129, 133-134; 369 N.W.2d 274 (1985). Further, all sentences are subject to appellate review. People v Broden, 428 Mich. 343, 354; 408 N.W.2d 789 (1987). Cf. Miller, supra.
We conclude that the guidelines are procedural rather then substantive. Therefore, the application of the revised guidelines after October 1, 1988, to a crime which occurred before their promulgation does not violate ex post facto prohibitions.
Affirmed.