Opinion
Docket No. 139018.
Decided April 7, 1992, at 9:30 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Ronald J. Bretz), for the defendant on appeal.
Before: FITZGERALD, P.J., and HOOD and CAVANAGH, JJ.
Defendant appeals as of right from the sentence of 1 1/2 to 14 years imposed after she pleaded guilty of uttering and publishing. MCL 750.249; MSA 28.446. Defendant was free on bond, awaiting sentencing for two other uttering and publishing convictions, when this offense was committed on July 14, 1990. Therefore, she received a mandatory consecutive sentence under MCL 768.7b(1); MSA 28.1030(2)(1). We affirm.
Defendant argues that the sentencing statute violates equal protection and substantive due process because it makes consecutive sentences mandatory only for felonies committed between April 1, 1988, and December 31, 1991. Before and after those dates, the sentencing court has discretion to decide whether to impose a consecutive rather than a concurrent sentence. See MCL 768.7b(1) and (2); MSA 28.1030(2)(1) and (2).
In evaluating equal protection and substantive due process claims, the first step is to decide which test applies. If the challenged classification affects a fundamental interest or involves a suspect classification, a compelling state interest is required to uphold it. Doe v Director of Dep't of Social Services, 187 Mich. App. 493, 522-523; 468 N.W.2d 862 (1991); People v Perkins, 107 Mich. App. 440, 443; 309 N.W.2d 634 (1981). Otherwise, the classification is to be upheld if it is not arbitrary and is rationally related to a legitimate state interest. People v O'Donnell, 127 Mich. App. 749, 756; 339 N.W.2d 540 (1983).
The window period created by the consecutive sentencing statute does not involve a suspect classification. See People v Maxson, 181 Mich. App. 133, 135; 449 N.W.2d 422 (1989) ("prisoners and nonprisoners are not suspect classifications"), see also O'Donnell, supra at 756 (strict scrutiny not required when examining a legislative classification with respect to the treatment of criminal offenders generally). Similarly, although convicts have lost the right to liberty in a general sense, they do retain some protected liberty interests. Wolff v McDonnell, 418 U.S. 539, 555-557; 94 S Ct 2963; 41 L Ed 2d 935 (1974); see also Perkins, supra at 443-444. However, it is clear that this residual liberty interest does not include the right to be totally free from consecutive sentences because, even without the challenged window period, the statute authorizes a sentencing court to impose a consecutive sentence in the exercise of its discretion. Thus, the distinction does not impinge upon a fundamental liberty interest.
The issue therefore is whether the window period is arbitrary and not rationally related to any legitimate government interest. Under the rational basis test, a classification is constitutional if "the legislative judgment is supported by `any state of facts either known or which could reasonably be assumed,' although such facts may be `debatable.'" Shavers v Attorney General, 402 Mich. 554, 614; 267 N.W.2d 72 (1978), reh den 403 Mich. 958 (1978), modified 406 Mich. 1122 (1979), modified 407 Mich. 1153 (1979), aff'd after remand 412 Mich. 1105 (1982). This test is "`not concerned with the wisdom, need or appropriateness of the legislation'" or with whether the classification is "`made with mathematical nicety or [whether] in practice it results in some inequality.'" O'Donnell v State Farm Mutual Automobile Ins Co, 404 Mich. 524, 541, 542; 273 N.W.2d 829 (1979), reh den 406 Mich. 1103 (1979), app dis 444 U.S. 803 (1979). The classification is presumed to be constitutional; the party challenging it bears the "heavy burden" of rebutting that presumption. Shavers, 402 Mich. 613-615.
Classifications based upon cutoff dates, such as the challenged window period, are not by themselves arbitrary or unreasonable. See, e.g., Hughes v Judge's Retirement Bd, 407 Mich. 75, 94; 282 N.W.2d 160 (1979); Seltzer v Sterling Twp, 371 Mich. 214, 221-222; 123 N.W.2d 722 (1963); Burgess v Detroit, 359 Mich. 269, 272; 102 N.W.2d 483 (1960). Further, the window period is rationally related to the state's interest in determining the effects of mandatory consecutive sentences upon prison capacity and population — a goal expressed in the statute. Defendant's challenges are relevant to the wisdom, necessity, and appropriateness of the statute and are best addressed to the Legislature.
Affirmed.