                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 25, 2016
               Plaintiff-Appellee,

v                                                                  No. 326919
                                                                   Ingham Circuit Court
ADRIAN ORTA ESTRADA,                                               LC No. 14-000450-FC

               Defendant-Appellant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

SHAPIRO, J. (concurring in part and dissenting in part)

        I concur with the majority except as to the sentencing issue. The trial court’s departure
decision was based in large part on the fact that after defendant committed the subject crime the
legislature amended the statute so as to now require a 25-year mandatory minimum sentence for
individuals convicted of the same offense. As a matter of law, the amended statute does not and
cannot apply retroactively.1 Moreover, its consideration at sentencing is improper because
“[s]entences must be individualized and tailored to fit the circumstances of the defendant and the
case.” People v Colon, 250 Mich App 59, 64; 644 NW2d 790 (2002) (quotation omitted). The
fact that the statute now requires a 25-year mandatory minimum is a fact that would apply to all
pre-amendment defendants without regard for the individual offense or offender. For these
reasons, I would remand for resentencing with instructions to the trial court to not consider the
amended statute in its sentencing decision.



                                                            /s/ Douglas B. Shapiro




1
  The statute, MCL 750.520b(2), was amended in 2006, and, as a defendant could face an
increased punishment under the amended statute, retroactive application would violate the ex
post facto clause of our constitution. See People v Slocum, 213 Mich App 239, 243; 539 NW2d
572 (1995).


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