                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan




Syllabus
                                                                Chief Justice:         Justices:
                                                                Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis

                                            PEOPLE v SMITH

               Docket No. 147187. Argued April 2, 2014 (Calendar No. 2). Decided June 18, 2014.

               Ryan C. Smith was charged in the Wayne Circuit Court with carrying a concealed
       weapon without a permit (CCW) in violation of MCL 750.227. Defendant pleaded guilty to a
       reduced charge of attempted CCW on May 12, 2011. At sentencing, defense counsel urged the
       court to delay sentencing for one year under MCL 771.1(2), but the prosecutor objected to a
       delayed sentence and asked that defendant be sentenced to probation in accordance with the plea
       agreement. The court, Vera Massey-Jones, J., expressing concern that a felony conviction would
       limit defendant’s employment opportunities, asked the parties to file sentencing memoranda and
       return to court to discuss whether delayed sentencing would be appropriate. The court noted its
       desire to delay sentencing for one year and a day, at which point it would have lost jurisdiction
       over the case. When the parties returned to court, the court announced that it would delay the
       sentencing for one year and stated on the record that it was scheduling defendant’s sentencing for
       June 15, 2012, which would have occurred within the one-year statutory period. However, the
       order signed that day, as well as the entry in the register of actions, reflected that the court had
       actually scheduled defendant’s sentencing for June 18, 2012, precisely one year and one day
       later. At sentencing on that date, over the prosecutor’s objection, the court refused to sentence
       defendant and dismissed the case entirely, citing its lack of jurisdiction. The prosecutor filed a
       delayed application for leave to appeal in the Court of Appeals, arguing that MCL 771.1 did not
       permit dismissal of the case. The Court of Appeals denied the prosecutor’s delayed application
       for leave to appeal in an unpublished order issued May 7, 2013 (Docket No. 312242). The
       Supreme Court granted the prosecutor’s application for leave to appeal. 495 Mich 858 (2013).

            In an opinion by Chief Justice YOUNG, joined by Justices MARKMAN, KELLY, ZAHRA,
       MCCORMACK, and VIVIANO, the Supreme Court held:

              MCL 771.1(2) does not divest a sentencing judge of jurisdiction if a defendant is not
       sentenced within one year after the imposition of a delayed sentence. The one-year limitation
       MCL 771.1(2) places on the period in which a court may delay sentencing designates the
       maximum amount of time that sentencing may be delayed in order to provide defendant the
       chance to establish his worthiness of leniency. After one year, sentencing may no longer be
       delayed for that purpose, and the judge is required to sentence defendant as provided by law.
       Previous Court of Appeals cases were overruled to the extent they held that a court may not
       sentence a defendant if the one-year period of delay was exceeded.
       Dismissal reversed; conviction reinstated; case remanded to the Wayne Circuit Court for
sentencing by a different judge.

       Justice CAVANAGH concurred in the result only.




                                  ©2014 State of Michigan
                                                                             Michigan Supreme Court
                                                                                   Lansing, Michigan




Opinion
                                                       Chief Justice:          Justices:
                                                       Robert P. Young, Jr. Michael F. Cavanagh
                                                                            Stephen J. Markman
                                                                            Mary Beth Kelly
                                                                            Brian K. Zahra
                                                                            Bridget M. McCormack
                                                                            David F. Viviano

                                                                        FILED June 18, 2014

                             STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

 v                                                              No. 147187

 RYAN CHRISTOPHER SMITH,

               Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 YOUNG, C.J.


       The issue to be determined in this case is whether MCL 771.1(2) divests a

 sentencing judge of jurisdiction if a defendant is not sentenced within one year after the

 imposition of a delayed sentence. We hold that it does not.

       The unambiguous language of the statute provides that the court may delay

 sentencing “for not more than 1 year to give the defendant an opportunity to prove to the

 court his or her eligibility for probation or other leniency compatible with the ends of
justice and the defendant’s rehabilitation . . . .”1 The one-year limitation designates the

maximum amount of time that sentencing may be delayed in order to provide defendant

the chance to establish his worthiness of leniency. After one year, sentencing may no

longer be delayed for that purpose, and the judge is required to sentence defendant as

provided by law.

        Court of Appeals caselaw holding that a court may not sentence a defendant if the

one-year period of delay is exceeded is overruled. We reverse the trial court’s dismissal

of the case, reinstate defendant’s conviction, and remand to Wayne County Circuit Court

for sentencing. Upon remand, the matter is to be assigned to a different judge.

                       I. FACTS AND PROCEDURAL HISTORY

        On February 10, 2011, defendant was a passenger in an automobile that was

stopped by the police for a traffic violation. As defendant exited the vehicle, officers

observed defendant drop a silver automatic handgun into the map pocket of the car door

and quickly close the door.2 After establishing that defendant did not possess a permit to

carry a concealed weapon, he was arrested and subsequently charged with the crime of

carrying a concealed weapon (CCW) in violation of MCL 750.227. Defendant, age 21 at

the time, was a college student with no prior criminal history.




1
    MCL 771.1(2).
2
 An investigation revealed that the handgun had been previously stolen from a nearby
police department.



                                              2
        The prosecutor permitted defendant to plead guilty to the reduced charge of

attempted CCW3 and recommended a probationary sentence. Defendant tendered his

guilty plea on May 12, 2011. At sentencing, defense counsel urged the court to delay

sentencing for one year, at which time defendant would be “very close to graduating from

college” and the prosecutor’s office might change its mind and either dismiss the case

entirely or permit defendant to plead guilty to a misdemeanor. The prosecutor objected to

a delayed sentence and asked that defendant be sentenced to probation. The trial court

expressed concern that defendant would “end up with a felony,” thus limiting his

employment opportunities. The court asked the parties to file sentencing memoranda and

return to court to discuss whether delayed sentencing would be appropriate. Expressing

its unhappiness with the prosecutor’s position, the court stated that it would consider “the

delayed sentence with one day over a year; then [the court] would have lost jurisdiction.”4

        The parties returned to court on June 17, 2011. Defense counsel requested that

sentencing be delayed for one year under MCL 771.1 to give defendant the opportunity to

show that he deserved “significant leniency” from the court. The prosecutor continued to

object to delayed sentencing, stating that the prosecutor’s office did not intend to reduce

the criminal charge any further. The trial court stated that it found it “disturb[ing]” that

the prosecutor opposed letting defendant’s sentence “go a day over 365 days,” which

would allow defendant to “end[] up with no record” because the court would “lose

3
    MCL 750.227; MCL 750.92.
4
  It was obvious from the beginning that the trial judge did not like the prosecutor’s
position and was entertaining ways of avoiding sentencing the defendant for the crime to
which he had pleaded guilty.



                                             3
jurisdiction.”5 The trial court announced that it would exercise its discretion and delayed

the imposition of defendant’s sentence for one year.        On the record, the trial court

scheduled defendant’s sentencing for June 15, 2012, which would have occurred within

the one-year statutory period. However, consistent with statements the trial judge had

made on the record that she desired to “lose” jurisdiction in the case, the order signed that

day, as well as the entry in the Register of Actions, reflect that the court scheduled

defendant’s sentencing for June 18, 2012—precisely one year and one day later.

        At sentencing, defense counsel reminded the judge that delayed sentencing was

sought so that defendant could prove “he was worthy of a dismissal.” Counsel noted that

defendant had complied with all court conditions, paid all fines and costs, and would

graduate from college. Abruptly interrupting defense counsel’s colloquy, the trial court

stated that defendant’s sentencing was “past a year,” meaning that the court had “lost

jurisdiction.” Over the prosecutor’s objection, the trial court not only refused to sentence

the defendant, it dismissed the case entirely.

        The prosecutor filed a delayed application for leave to appeal with the Court of

Appeals, arguing that the trial court had no legal authority to dismiss the case over the

prosecution’s objections, because MCL 771.1 did not permit dismissal of the case. The




5
  The trial court’s willingness to circumvent the prosecutor’s insistence that the defendant
be sentenced to probation for attempted CCW could not be more clear when the trial
judge stated that she was unhappy with the prosecutor’s position and suggested twice on
the record at different hearings that she might schedule the delayed sentence in order to
lose jurisdiction under the then prevailing interpretation of MCL 771.1.



                                                 4
Court of Appeals issued an order denying the delayed application for leave to appeal for

lack of merit.6 This Court granted leave to appeal.7

                                II. STANDARD OF REVIEW

          The consequences, if any, for a trial court’s failure to sentence a defendant within

one year pursuant to MCL 771.1 is a question of statutory interpretation that this Court

reviews de novo.8

          The Court’s primary responsibility in statutory interpretation is to determine and

give effect to the Legislature’s intent.9 The words of a statute are the most reliable

indicator of the Legislature’s intent and should be interpreted according to their ordinary

meaning and the context within which they are used in the statute.10                Once the

Legislature’s intent has been discerned, no further judicial construction is required or

permitted, as the Legislature is presumed to have intended the meaning it plainly

expressed.11



6
  People v Smith, unpublished order of the Court of Appeals, entered May 7, 2013
(Docket No. 312242). Judge MURRAY would have peremptorily reversed the trial court’s
order of dismissal and reinstated defendant’s conviction. He conceded that defendant
could not be sentenced pursuant to binding Court of Appeals precedent, but would have
“allow[ed] the parties to address the appropriate remedy on remand.”
7
    People v Smith, 495 Mich 858 (2013).
8
    People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
9
    Id.
10
     People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
11
     People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).



                                               5
                                       III. ANALYSIS

         The statutory provision at issue in this case, MCL 771.1(2), is contained in

Chapter XI of the Code of Criminal Procedure, which concerns probation. The statute

provides in relevant part:

                 (2) In an action in which the court may place the defendant on
         probation, the court may delay sentencing the defendant for not more than 1
         year to give the defendant an opportunity to prove to the court his or her
         eligibility for probation or other leniency compatible with the ends of
         justice and the defendant’s rehabilitation, such as participation in a drug
         treatment court . . . . When sentencing is delayed, the court shall enter an
         order stating the reason for the delay upon the court’s records. The delay in
         passing sentence does not deprive the court of jurisdiction to sentence the
         defendant at any time during the period of delay.[12]

         The plain language of the statute permits a trial court to delay sentencing for up to

one year for those defendants who are eligible for placement on probation.13 The purpose

of delaying a defendant’s sentence pursuant to this statutory provision is entirely for the

benefit of the convicted defendant—it is to “give the defendant an opportunity to prove to

the court” that he is worthy of “probation or other leniency compatible with the ends of

justice” and rehabilitation.     Read in its entirety, the statute provides a simple and

straightforward time limit, indicating the maximum amount of time the court may delay

12
     MCL 771.1(2) (emphasis added).
13
  MCL 771.1(1) delineates the criminal offenses for which a defendant may be placed on
probation rather than serve a term of imprisonment. The trial court has the discretion to
impose a term of probation for all misdemeanors or felonies with the exception of
murder, treason, criminal sexual conduct in the first or third degree, armed robbery, and
major controlled substance offenses. The statute further requires that the court make the
determination “that the defendant is not likely again to engage in an offensive or criminal
course of conduct and that the public good does not require that the defendant suffer the
penalty imposed by law . . . .”



                                               6
sentencing in order to give the defendant a chance to prove himself.14 The statute also

indicates that the imposition of a delayed sentence is not irrevocably binding upon the

trial court, in that it does not “deprive the court of jurisdiction to sentence the defendant

at any time during the period of delay.”15

       In urging this Court to uphold the actions of the trial court, defendant relies on a

series of Court of Appeals cases holding that an unexcused violation of the one-year limit

contained in MCL 771.1(2) results in the trial court losing jurisdiction to sentence a

defendant.16 However, the action taken by the trial court in this case was not simply

limited to abstaining from sentencing defendant Smith. There is simply no basis in our

law for the trial court to do as it did in this case. Without citing a scintilla of legal

authority, the trial court dismissed the case over the objection of the prosecutor. Aside

from flagrantly ignoring contrary Court of Appeals precedent in entirely dismissing the

case,17 the trial court usurped the prosecutor’s role in violation of the separation of

14
   The language providing that sentencing may be delayed “for not more than 1 year”
indicates that sentencing could be delayed for a lesser period of time.
15
   Thus, regardless whether defendant’s behavior during the period of delay is abhorrent
or exemplary, a sentencing judge is not required to wait until the period of delay has
elapsed in order to sentence defendant in accordance with the law and dispense whatever
leniency the Court is inclined to provide.
16
  See People v McLott, 70 Mich App 524; 245 NW2d 814 (1976) (jurisdiction to impose
sentence was not lost where the delay was only six days and because the trial court could
not be present); People v Turner, 92 Mich App 485; 285 NW2d 340 (1979); People v
Dubis, 158 Mich App 504; 405 NW2d 181 (1987); People v Boynton, 185 Mich App
669; 463 NW2d 174 (1990).
17
   MCR 7.215(C)(2). See, e.g., Boynton 185 Mich App at 671. There, the Court of
Appeals reversed the trial court’s dismissal of charges against defendant, emphasizing
“that an unexcused violation of the one-year limit contained in the delayed sentencing


                                             7
powers principles contained in our constitution.18 It is axiomatic that the power to

determine whether to charge a defendant and what charge should be brought is an

executive power, which vests exclusively in the prosecutor.19 The trial court had no legal

basis to trump the prosecutor’s charging decision, much less dismiss the case after the

defendant had pleaded to the charge and had never sought to withdraw his plea.

       Furthermore, in so far as the Court of Appeals cases relied upon by defendant have

construed MCL 771.1(2) to preclude sentencing when there is a failure to impose a

sentence within 365 days of the imposition of a delayed sentence, those cases have

incorrectly interpreted the statute. Nothing in the language of the statute requires this,

and the Legislature is certainly capable of explicitly divesting a court of jurisdiction had

such a remedy been intended.20 Indeed, the only mention of the word “jurisdiction” in

the entire statutory provision simply clarifies that a court retains its ability to sentence a


statute affects only the court’s authority to sentence the defendant, nothing more.”
18
   See Const 1963, art 3, § 2. “The powers of government are divided into three
branches: legislative, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as expressly provided
in this constitution.” The trial judge’s oath of office required her to solemnly swear to
support the Michigan and federal Constitutions and to faithfully discharge the duties of a
circuit court judge. See MCL 168.420; Const 1963, art 11, § 1.
19
   Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693
(1972).
20
   See MCL 780.133, which provides the remedy for a violation of MCL 780.131: “In the
event that, within the time limitation set forth in section 1 of this act, action is not
commenced on the matter for which request for disposition was made, no court of this
state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment,
information or complaint be of any further force or effect, and the court shall enter an
order dismissing the same with prejudice.” (Emphasis added.)



                                              8
defendant at any time during the period of delay. The fact that the Legislature explicitly

permits a court to sentence defendant at any time during the period of delay simply does

not create the affirmative pregnant underlying the rationale of the cases cited by

defendant—namely, that the court is not permitted to sentence a defendant outside the

period of delay. Thus, in the absence of a clear and unambiguous indication that the

Legislature intended that a defendant avoid all punishment as a remedy for not being

sentenced within one year when his sentence is delayed under MCL 771.1(2), we decline

to impose such a remedy.21 After the one-year statutory limitation elapses, sentencing

may no longer be delayed for the purpose of permitting a defendant the opportunity to

prove that he is worthy of leniency, and the judge is required to sentence defendant as

provided by law. We overrule People v McLott, People v Turner, People v Dubis, and

People v Boynton to the extent they hold that a court loses jurisdiction to sentence a

defendant as a remedy for a violation of MCL 771.1(2).

      This is not to say, however, that there are no limitations on a trial court’s ability to

delay the imposition of a defendant’s sentence. Longstanding Michigan law requires that

a defendant be sentenced within a reasonably prompt time as part of defendant’s right to

a speedy trial.22 In determining whether a defendant’s right to a speedy trial has been

21
  See Lash v Traverse City, 479 Mich 180, 193; 735 NW2d 628 (2007); People v Anstey,
476 Mich 436, 445 n 7; 719 NW2d 579 (2006) (“Because the Legislature did not provide
a remedy in the statute, we may not create a remedy that only the Legislature has the
power to create.”).
22
  See People v Kennedy, 58 Mich 372, 376-377; 25 NW 318 (1885); People v McIntosh,
103 Mich App 11, 20-21; 302 NW2d 321 (1981); People v Bracey, 124 Mich App 401;
335 NW2d 49 (1983). See also MCR 6.425(E)(1) (“The court must sentence defendant
within a reasonably prompt time after the plea or verdict unless the court delays


                                             9
violated, a four-part balancing test is used that considers (1) the length of delay, (2) the

reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the

defendant.23

         Applying those factors to the facts of this case does not indicate that defendant’s

speedy trial rights were violated. Regarding the first factor, the length of the delay was a

mere one day past the one-year limitation contained in MCL 771.1(2). Second, the

reason for the delay, as can be inferred from the record before us, was a calculated effort

by the trial court to circumvent the law24 and avoid the charging decision of the

prosecutor in order to spare defendant the consequences of acquiring a criminal record.

Third, defendant makes no claim, and the record does not reveal, any indication that

defendant ever asserted his desire to be sentenced before the one-year period of delay had

elapsed. Indeed, such an assertion would have been antithetical to defense counsel’s

stated goal of having the case dismissed. Lastly, defendant makes no claim that he has

been prejudiced by the one-day delay in sentencing. In short, application of the relevant

factors militates against the conclusion that defendant’s speedy trial rights were violated.

                                    IV. CONCLUSION

         Because the plain language of MCL 771.1(2) does not deprive a sentencing judge

of jurisdiction if a defendant is not sentenced within one year after the imposition of a


sentencing as provided by law.”).
23
  People v Chism, 390 Mich 104, 111; 211 NW2d 193 (1973); Barker v Wingo, 407 US
514, 530; 92 SCt 2182; 33 L Ed 2d 101 (1972).
24
     In re Justin, 490 Mich 394; 809 NW2d 126 (2012).



                                             10
delayed sentence, we overrule the Court of Appeals decisions in People v McLott, People

v Turner, People v Dubis, and People v Boynton to the extent they hold otherwise. We

reverse the trial court’s dismissal of the case, reinstate defendant’s conviction, and

remand to the Wayne County Circuit Court for sentencing.

       Because the trial judge in this case demonstrated overt hostility to the prosecution

of this case by manipulating the scheduling of sentencing in order to thwart the

prosecutor’s charging decision and by entirely dismissing the case, thereby exceeding

even the scope of incorrectly decided Court of Appeals precedent, we remand for

sentencing before a different judge.


                                                       Robert P. Young, Jr.
                                                       Stephen J. Markman
                                                       Mary Beth Kelly
                                                       Brian K. Zahra
                                                       Bridget M. McCormack
                                                       David F. Viviano


       Cavanagh, J., concurred in the result only.




                                            11
