On July 28, 2021, the Michigan Supreme Court issued its opinion in People v Arnold II, __ Mich __ ; __ NW2d __ (2021)(Docket No. 160046) and ruled that an individual convicted of indecent exposure as a sexually delinquent person under MCL 750.335a(2)(c) shall only be sentenced under the provisions of that statute and not under Michigan’s sentencing guidelines scheme. The defendant is entitled to resentencing by the trial court.
Lonnie Arnold was charged and convicted by a jury of aggravated indecent exposure under MCL 750.335a(2)(b) and incident exposure by a sexually delinquent person under MCL 750.335a(2)(c) as a fourth-habitual offender by the Monroe County Circuit Court. He was accused of masturbating in a public library. The statute provides the following penalties:
- INDECENT EXPOSURE: “A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.” MCL 750.335a(1). A person who commits this crime “is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.” MCL 750.335a(2)(a).
- AGGRAVATED INDECENT EXPOSURE: “If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while [committing indecent exposure], the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.” MCL 750.335a(2)(b).
- INDECENT EXPOSURE BY A SEXUALLY DELINQUENT PERSON: “If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.” MCL 750.335a(2)(c). “Sexually delinquent person” means “any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.” MCL 750.10a.
At sentencing, defense counsel argued that MCL 750.335a(2)(c) requires the sentence to be “1 day to life”. The trial court disagreed and indicated that it was prohibited from imposing “life tail” sentences and determined that the sentence guidelines scheme applied here. As a result, Mr. Arnold was sentenced to 25 to 70 years in state prison on the controlling count of indecent exposure as a sexually delinquent person.
This case has a lengthy history on appeal. The Michigan Court of Appeals upheld the conviction. It reached the Michigan Supreme Court the first time and they ruled that the “1 day to life” sentence for indecent exposure as a sexually delinquent person in MCL 750.335a(2)(c) was an alternative to the other sentences provided in MCL 750.335a and was not modifiable. People v Arnold, 502 Mich 438 (2018) (Arnold I). The case was remanded back to the Court of Appeals, which determined that the trial court was not aware that there was two possible sentencing alternatives available when the case was originally sentenced (the statutory sentence or the sentencing guidelines calculation)so it was sent back to the trail judge for resentencing. 328 Mich App (2019). Mr. Arnold appealed once again to the Michigan Supreme Court.
In Arnold II, the four-justice majority, led by Justice Viviano, found that the statutory penalty was in conflict with the sentencing guidelines, so the statutory penalty must control. Under MCL 777.16q of the sentencing guidelines statute, indecent exposure as a sexually delinquent person is a Class A felony punishable by a maximum of life in prison. However, nearly all crimes designated as Class A felonies in Michigan have a statutory maximum penalty of “life in prison or any term of years”. The sentence guidelines grid for Class A felonies in MCL 777.62 lays out possible minimum sentences for term-of-years sentences. These minimum sentence possibilities clash with the statutory requirement in MCL 750.335a(2)(c) that the minimum penalty for indecent exposure as a sexually delinquent person is “one day”. This is a clear conflict. However, the sentencing guideline statute provides at MCL 760.34(2)(a) that the ranges in the guideline calculations are subordinate to the language in the substantive criminal statute. Since MCL 750.335a(2)(c) establishes a mandatory minimum sentence for one day and allows no variances, the trial court must impose either the sentence in MCL 750.335a(2)(c) or the applicable alternative in MCL 750.335a(2)(a) or (b), along with any applicable sentencing enhancements.
This means, at resentencing, the trial court has the following three options when sentencing Mr. Arnold for indecent exposure as a sexually delinquent person:
- (1) Sentence Mr. Arnold under MCL 750.335a(2)(a) as if it was regular indecent exposure to a maximum of one year in jail. The sentencing guidelines do not apply to misdemeanor sentences. He would then be released for time served.
- (2) Sentence Mr. Arnold under MCL 750.335a(2)(b) as if it was aggravated indecent exposure to a two-year maximum offense, but enhanced to a fifteen-year maximum offense under MCL 769.12. In this instance, the sentencing guidelines would apply but, due to the significantly reduced offense, the minimum sentence would have to be 10 years or less due to the 2/3 rule that determines the maximum ratio between minimum sentences and maximum sentences.
- (3) Sentence Mr. Arnold to “one day to life” under MCL 750.335a(2)(c). This means that Mr. Arnold would be immediately eligible for parole and can apply every single year if he gets “flopped”.
The remaining three justices concurred in that Mr. Arnold’s 25 to 70 year sentence was invalid and he had to be sentenced under one of the three options above, but disagreed with the reasoning. They disagree with the majority’s conclusion that the ordinary meaning of MCL 777.16q is not the same as what it says because interpreting the statute’s reference to “life” as “life or any term of years” requires a series of inferences. But these inferences are common though the sentencing guidelines statute. Instead, the concurring justices believed that the situation is remedied by Michigan constitutional law (the Reenact-Publish Clause at Mich Const 1963, art 4, § 25) that prevents a provision of the Code of Criminal Procedure (where the guidelines are found) from changing a substantive sentencing option in the Michigan Penal Code. Under that basis, they believed the sentencing options in MCL 750.335a would trump the sentencing guidelines anyway.
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