Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 17, 2016                                                                      Robert P. Young, Jr.,
                                                                                                Chief Justice

  152827                                                                              Stephen J. Markman
                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                         Joan L. Larsen,
            Plaintiff-Appellee,                                                                      Justices

  v                                                       SC: 152827
                                                          COA: 329372
                                                          Ottawa CC: 14-038444-FC
  ANTHONY ALFREDO DELAGARZA,
          Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the November 18, 2015
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

          Defendant pleaded guilty to charges of second-degree murder and conspiracy to
  commit murder. At the plea hearing, the prosecutor explained that “even though [the
  conspiracy charge] would be a conspiracy to commit murder in the first degree, it would
  be [sentenced using] the second degree murder grid [of the sentencing guidelines].” The
  trial court informed defendant that the conspiracy charge “carr[ied] a penalty of up to life
  in prison” and stated at sentencing that “by virtue of the plea agreement, . . . conviction
  will enter on the less serious charge of conspiracy to commit second degree murder.”
  Similarly, the judgment of sentence lists the offense as conspiracy to commit second-
  degree murder. The sentence was to concurrent prison terms of 20 to 40 years.
  Defendant now has moved to withdraw his conspiracy plea on the basis that he pleaded
  guilty of conspiracy to commit second-degree murder, which is a nonexistent crime. The
  trial court denied this motion without significant analysis, suggesting that any error was
  not prejudicial, and the Court of Appeals denied leave to appeal.

         There are two issues in this case, each implicating the trial court’s authority to
  impose a particular sentence for the conspiracy plea. The first is whether, as defendant
  contends, the sentence is invalid because he was formally sentenced to a nonexistent
  conspiracy crime. As the Court of Appeals has recognized, a “conspiracy to commit
  second-degree murder is not a criminal offense,” and therefore a trial court abuses its
  discretion when it fails to grant a defendant’s motion to withdraw a plea of guilty to such
  a nonexistent offense. People v Hammond, 187 Mich App 105, 109-113 (1991). I find it
  compelling here that the formal judgment of sentence states that defendant entered a
  guilty plea to conspiracy to commit second-degree murder, citing the second-degree
  murder statute, MCL 750.317; this also reflects the trial court’s express statements at
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sentencing. As such, I believe defendant has a valid argument that he was sentenced to a
nonexistent crime.

          The second issue is whether, even assuming the validity of the criminal offense,
the trial court lacked the authority to impose the term-of-years sentence given that
conspiracy to commit first-degree murder carries a mandatory sentence of life
imprisonment. MCL 750.157a(a) provides that a person convicted of conspiracy “shall
be punished by a penalty equal to that which could be imposed if he had been convicted
of committing the crime he conspired to commit . . . .” (Emphasis added.) Consequently,
the punishment for conspiracy to commit first-degree murder is the same as the
punishment for first-degree murder: “[A] person who commits any of the following
[acts] is guilty of first-degree murder and shall be punished by imprisonment for
life . . . .” MCL 750.316(1). Thus, a sentence to a term-of-years for this crime would
violate the statutorily prescribed penalty. We have held that “[a] sentence is invalid when
it is beyond statutory limits . . . .” People v Miles, 454 Mich 90, 96 (1997). Because the
instant sentence fell below the mandatory minimum, the trial court disregarded the
legislatively prescribed limitation on its sentencing discretion and consequently lacked
the authority to impose this sentence.

        I would remand this case to the Court of Appeals for consideration of both issues
and would further reject for the following reasons the trial court’s suggestion that the
asserted lack of prejudice to defendant renders remand unnecessary. First, each of the
errors described implicates the inherent authority of the trial court to impose the sentence
it did. We have opined that “[a] sentence may be invalid no matter whom the error
benefits because sentencing must not only be tailored to each defendant, but [must] also
satisfy ‘society’s need for protection and its interest in maximizing the offender’s
rehabilitative potential.’ ” Id. at 98 (citation omitted; emphasis added). Second, any lack
of prejudice to defendant stands alongside prejudice to the legislative process and thus to
the people of this state. The Legislature, and not the judiciary, possesses the power to set
criminal penalties. People v Hegwood, 465 Mich 432, 436 (2001). Therefore, when a
trial court disregards these penalties, it imposes criminal punishments that the Legislature
has rejected. Third, I would observe that defendant himself evidently feels aggrieved by
his sentence, despite having been expressly informed at the withdrawal-motion hearing
that the prosecutor would reinstate the first-degree murder charges with their
accompanying mandatory sentences of life imprisonment and having fully acknowledged
his understanding of this risk.
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        Finally, I believe that the issues raised here are of considerable jurisprudential
significance because they concern the trial court’s encroachment on the Legislature’s
prerogative to define criminal penalties. Such disregard of mandatory sentences results
in the effective nullification of the Legislature’s sentencing scheme. This is because a
mandatory minimum sentence is clearly designed by the Legislature to operate as a
limitation on the trial court’s sentencing discretion. Once more, “the ultimate authority to
provide for penalties for criminal offenses is constitutionally vested in the Legislature.”
Id. Permitting trial courts to treat these mandates as mere suggestions can only
undermine our penal code. I would remand this case to the Court of Appeals for
consideration of these issues and, by this dissent, call this case to the attention of the
Legislature.

       VIVIANO and BERNSTEIN, JJ., join the statement of MARKMAN, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 17, 2016
       t0614
                                                                             Clerk
