If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

June 11, 2019

9:05 a.m.

v No. 325407

Monroe Circuit Court

LONNIE JAMES ARNOLD, LC No. 13-040406-FH

Defendant-Appellant.

ON REMAND

Before: GLEICHER, P.J., and MURRAY, C.J. and CAVANAGH, J.

PER CURIAM.

Violation of the statute proscribing indecent exposure by a sexually delinquent person, 

MCL 750.335a(2)(c) “is punishable by imprisonment for an indeterminate term, the minimum of 

which is 1 day and the maximum of which is life.” Before the enactment of the legislative 

sentencing guidelines, the “1 day to life” sentence was construed as an alternate or optional 

sentence for sexually delinquent persons. See People v Kelly, 186 Mich App 524; 465 NW2d 

569 (1990). With the 1998 enactment of the legislative sentencing guidelines, indecent exposure 

by a sexually delinquent person was classified as a Class A offense felony, subject to a range of 

sentences dependent on an offender’s variable scores. MCL 777.16q. The Supreme Court has 

directed us to consider what effect, if any, the adoption of the guidelines “had on a trial court’s 

options in sentencing a defendant convicted of indecent exposure by a sexually delinquent 

person.” People v Arnold, 502 Mich 438, 483; 918 NW2d 164 (2018) (Arnold III).

We conclude that the sentencing guidelines provide another option or alternative, in 

addition to the sexual delinquency scheme, when sentencing an individual convicted of indecent 

exposure. As the trial court was not aware of its range of sentencing options, or that the 

legislative sentencing guidelines would be rendered advisory by People v Lockridge, 498 Mich 

358; 870 NW2d 502 (2015), we vacate defendant’s sentence and remand to the trial court for 

further sentencing proceedings.
-2-

I

A jury convicted defendant of indecent exposure by a sexually delinquent person in 

violation of MCL 750.335a(2)(c)1 for fondling himself at a public library in front of an 

employee. Defendant was characterized as a sexually delinquent person because he had 

committed such acts before and therefore was a “person whose sexual behavior is characterized 

by repetitive or compulsive acts which indicate a disregard of consequences or the recognized 

rights of others.” MCL 750.10a.2 Indecent exposure by a sexually delinquent person is a Class 

A felony under MCL 777.16q, with a statutory maximum of life. Defendant’s offense and prior 

record variable scores placed him in cell F-III of the Class A grid, MCL 777.62, and with 

consideration of defendant’s fourth habitual offender status, MCL 777.21(3)(c), defendant’s 

minimum guidelines range was calculated at 135 to 450 months. Arnold III, 502 Mich at 449-

450. The trial court sentenced defendant within the guidelines to 25 to 70 years’ imprisonment. 

People v Arnold, unpublished opinion of the Court of Appeals, issued April 12, 2016 (Docket 

No. 325407), slip op at 1 (Arnold I).3

In Arnold I, defendant challenged his sentence, asserting that the trial court was required 

by MCL 750.335a(2)(c) to sentence him to “1 day to life”. Arnold I, slip op at 4. We concluded 

that a court sentencing a defendant convicted under MCL 750.335a(2)(c) must still “abide by the 

sentencing guidelines” as directed by People v Buehler (On Remand), 271 Mich App 653, 658-

659; 723 NW2d 578 (2006), rev’d in part on other grounds 477 Mich 18 (2007). Arnold I, slip 

op at 5. However, we remanded for further sentencing proceedings as Lockridge, 498 Mich 358, 

had since rendered the sentencing guidelines advisory. Arnold I, slip op at 5-6.

Defendant sought reconsideration, again urging that a sentence of “1 day to life” was 

required. We granted the motion because in the interim this Court issued a published opinion 

controlling our resolution of this issue—People v Campbell, 316 Mich App 279; 894 NW2d 72 

(2016). Campbell, 316 Mich App at 299-300, held that although the legislative sentencing 

guidelines were now only advisory, “the sentence provided under MCL 750.335a(2)(c) is stated 

in mandatory terms. Consequently, after the decision in Lockridge, trial courts must sentence a 

defendant convicted of indecent exposure as a sexually delinquent person consistently with the 

requirements of MCL 750.335a(2)(c).” In People v Arnold, unpublished opinion of the Court of 

Appeals, issued September 22, 2016 (Docket No. 325407), slip op at 2 (Arnold II), we concluded 

 1 MCL 750.335a was amended after defendant’s trial. See 2014 PA 198. However, the relevant 

sections of MCL 750.335a(1) and (2) have not been altered in any substantive way.

2 “MCL 750.10a is a definitional statute, and does not carry the possibility of a separate 

conviction or sentence independent of other charges in the Criminal Code.” People v Craig, 488 

Mich 861; 788 NW2d 13 (2010). 

3 In Arnold I, slip op at 4, we vacated defendant’s conviction and sentence for aggravated 

indecent exposure, MCL 750.335a(2)(b), as violative of double jeopardy. That ruling has not 

been challenged.
-3-

that we were “bound by Campbell” to “remand for imposition of the mandatory sentence set 

forth in MCL 750.335a(2)(c).”

The Supreme Court granted the prosecutor’s application for leave to appeal this Court’s 

decision in Arnold II, “set aside Campbell,”4 and vacated our opinion based upon it. Arnold III, 

502 Mich at 483. The Supreme Court determined that a “ ‘1 day to life’ sentence has never been 

required by [MCL 750.335a(2)(c)],” contrary to Campbell, 316 Mich App at 279. Arnold III, 

502 Mich at 444. Rather, “1 day to life” is a nonmodifiable sentencing option for sexual 

delinquents. Id. at 450-451, citing Kelly, 186 Mich App at 531.

The Court outlined the development of the sexual delinquency sentencing scheme. 

Arnold III, 502 Mich at 447-465. The Court described how the first sexual delinquency acts 

provided for the indefinite commitment of “sexual psychopaths” until a court determined that 

they were no longer “a menace to the public safety.” Id. at 457 (cleaned up).5 Over time, “the 

Legislature began chipping away at” the broad application of the sexual delinquency sentencing 

scheme. Id. at 464. It is now limited in application to five specific offenses: “(1) sodomy, MCL 

750.158, (2) indecent exposure, and (3) gross indecency between (a) two males, MCL 750.338, 

(b) two females, MCL 750.338a, or (c) between a male and a female, MCL 750.338b.” Arnold

III, 502 Mich at 464-465. The Court further noted that prior to the enactment of 2005 PA 300, 

MCL 750.335a provided that violation of the statute “ ‘may be punishable by imprisonment . . . 

for an indeterminate term, the minimum of which shall be 1 day and the maximum of which 

shall be life.’ ” The 2005 amendments substituted “is” for the emphasized terms. Arnold III, 

502 Mich at 451-452.

The Court concluded that the “1 day to life” sentence comprises an “alternate sentence” 

in accordance with MCL 767.61a, and that this alternative sentence is optional, not mandatory. 

Id. at 465-469. MCL 767.61a outlines the manner in which an individual charged of an 

identified predicate offense may commensurately be identified as a sexually delinquent person:

In any prosecution for an offense committed by a sexually delinquent person for 

which may be imposed an alternate sentence to imprisonment for an 

indeterminate term, the minimum of which is 1 day and the maximum of which is 

life, the indictment shall charge the offense and may also charge that the 

defendant was, at the time said offense was committed, a sexually delinquent 

person. . . . Upon a verdict of guilty to the first charge or to both charges or upon 

a plea of guilty to the first charge or to both charges the court may impose any 

punishment provided by law for such offense. [MCL 767.61a (emphasis added).]

 4 We note that neither party sought leave to appeal in Campbell.

5 This opinion uses the parenthetical (cleaned up) to improve readability without altering the 

substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as 

brackets, alterations, internal quotation marks, and unimportant citations have been omitted from 

the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
-4-

Under this statute, before the enactment of the statutory sentencing guidelines, “a judge faced 

with an adjudicated sexual delinquent guilty of indecent exposure could choose any legally 

available sentencing option that the judge deemed appropriate,” including a fine and jail sentence 

of up to 1 year or alternatively “1 day to life” as provided in MCL 750.335a(2)(a)-(c). Arnold 

III, 502 Mich at 468-469. The Supreme Court “conclude[d] that [Kelly, 186 Mich App 524,] 

correctly construed the ‘1 day to life’ alternate sentence as an option a sentencing judge could 

draw upon, alongside and not to the exclusion of other available options,” based on “the text of 

[MCL 750.335a(2)], the Legislature’s usual pattern in clearly identifying mandatory sentences, 

the relation this scheme would have had to the overarching law of sentencing at the time the 

scheme was adopted, and the history of the scheme.” Arnold III, 502 Mich at 469.

“Having concluded that Kelly correctly construed ‘1 day to life’ as an option,” the 

Supreme Court then considered whether the option of “1 day to life” was modifiable—permitting 

a sentence within the range identified—or nonmodifiable—requiring the precise sentence of “1 

day to life.” Id. The Court found the “1 day to life” sentence nonmodifiable based on the 

Legislature’s use of the mandatory term “shall.” The Court also found the characterization of “1 

day to life” as an “alternate sentence” in MCL 767.61a to “indicate[] that [the sentence] ought to 

function in some distinct way.” Arnold III, 502 Mich at 470. The Court further relied on the 

historical purpose of the “sexual-delinquency scheme, which was clearly intended to be 

therapeutic and open-ended.” Id. at 471. The Court emphasized, “The purpose of the scheme 

was to create a different sentencing option, one in which the judge gave up control over the 

amount of time the defendant served to experts who would assess when the defendant was well 

enough to rejoin society.” Id.

And viewing the “1 day to life” sentencing scheme in conjunction with MCL 769.9(2), 

the Supreme Court “agree[d] with Kelly that the ‘1 day to life’ sentencing scheme is an exception 

to the indeterminate sentencing statute’s ban on so-called ‘life tails.’ ”6 Arnold III, 502 Mich at 

472. Specifically, the Court explained:

MCL 769.9(2) applies only to “cases where the maximum sentence in the 

discretion of the court may be imprisonment for life or any number or term of 

years.” The phrasing “life or any term of years” is used verbatim in a variety of 

statutes. When MCL 750.335a was adopted, it spoke of “imprisonment in the 

 6 MCL 769.9(2) bans “life tails” as follows:

In all cases where the maximum sentence in the discretion of the court may be 

imprisonment for life or any number or term of years, the court may impose a 

sentence for life or may impose a sentence for any term of years. If the sentence 

imposed by the court is for any term of years, the court shall fix both the 

minimum and the maximum of that sentence in terms of years or fraction thereof, 

and sentences so imposed shall be considered indeterminate sentences. The court 

shall not impose a sentence in which the maximum penalty is life imprisonment 

with a minimum for a term of years included in the same sentence.
-5-

state prison for an indeterminate term, the minimum of which shall be 1 day and 

the maximum of which shall be life,” 1952 PA 73, and MCL 767.61a speaks of 

“an indeterminate term, the minimum of which is 1 day and the maximum of 

which is life.” On its own, this difference in wording may be enough to remove 

sexual-delinquency cases from MCL 769.9(2). Moreover, we agree with Kelly

that because MCL 769.9(2) is a general indeterminate sentencing statute, while 

the sexual-delinquency scheme is a specific, integrated scheme, the more specific 

statute controls. [Arnold III, 502 Mich at 472 (cleaned up).]

The Court concluded:

[W]e construe the “1 day to life” sentence that the Legislature adopted in 1952 as 

being an alternative sentencing option that existed alongside other options, such 

as a life sentence or a term of years. Much as the sentence concepts “life” and 

“any term of years” are mutually exclusive and a sentencing judge may (in the 

appropriate case) opt for either but not both, so “1 day to life” was a mutually 

exclusive concept that a sentencing judge was free to opt for to the exclusion of a 

life- or term-of-years sentence. [Id. at 472-473 (cleaned up).]

Based on this ruling, the Court overruled or abrogated various cases to the extent they 

treated the “1 day to life” provision as an exclusive sentence. See People v Butler, 465 Mich 

940, 941; 639 NW2d 256 (2001); People v Murphy, 203 Mich App 738; 513 NW2d 451 (1994). 

See also People v Buehler, 477 Mich 18; 727 NW2d 127 (2007); Buehler (On Remand), 271 

Mich App 653; People v Buehler, 268 Mich App 475; 710 NW2d 55 (2005). The Court also 

determined that the reasoning in Campbell “cannot stand,” and must be “set aside” as it did not 

accord with the plain language of MCL 750.335a(2)(c) or its legislative history. Arnold III, 502 

Mich at 479-481, 483.

In relation to the legislative sentencing guidelines, the Court reasoned:

[W]e do not believe that Lockridge has the significance ascribed to it by 

the Court of Appeals in Campbell. Lockridge concluded that the scoring process 

for the legislative sentencing guidelines violated the Sixth Amendment and, as a 

remedy for that constitutional violation, directed that henceforth the guidelines 

would be only advisory. Neither identifying that problem nor crafting that 

remedy illuminates whether the adoption of the sentencing guidelines and the 

classification of indecent exposure by a sexually delinquent person as a Class A 

felony could make legal a sentence that would not have been legal before the 

sentencing guidelines were adopted. Whether the sentencing guidelines are 

mandatory or merely advisory is neither here nor there; the question is what effect 

the legislative act of adopting the guidelines had on the sexual-delinquency 

scheme. [Id. at 480-481.]

And in relation to the Buehler line of cases, the Court continued:

[W]e no longer believe Buehler III[, 477 Mich 18,] fully understood the 

nature of the sexual-delinquency scheme. Its embrace of a vision of dueling 
-6-

mandates between MCL 750.335a and the sentencing guidelines misconstrued the 

nature of the “1 day to life” sentencing option provided by MCL 750.335a and 

MCL 767.61a. It appears that the Court of Appeals in the instant case relied on 

the series of Buehler decisions, in particular their caveat that the 2005 PA 300 

amendment of MCL 750.335a may have been meaningful, in reaching its 

decision. By contrast, we have now concluded that the 2005 PA 300 amendment 

made no meaningful textual adjustment to the statute. [Arnold III, 502 Mich at 

479-481.]

Ultimately, the Supreme Court concluded:

Kelly correctly construed the sexual-delinquency “1 day to life” scheme, as an 

option a trial court could use its discretion to consider imposing alongside the 

other statutory penalties available under the statute (at that time, up to 1 year in 

jail, which was expanded by 2005 PA 300 to be as much as 2 years in prison for 

aggravated indecent exposure). We hold that the switch in 2005 PA 300 from 

“may be punishable” to “is punishable,” and “the minimum of which shall be 1 

day” to “the minimum of which is 1 day,” and “the maximum of which shall be 

life” to “the maximum of which is life,” is merely stylistic. We conclude that 

Lockridge’s constitutional remedy is not pertinent to the outcome of this case. 

And we disavow Buehler as having been premised on a misconception of the law 

of sexual delinquency. [Arnold III, 502 Mich at 482-483.]

Our directive, “in light of these rulings,” is to determine “what effect the adoption of the 

legislative sentencing guidelines in 1998—and in particular, their classification of the instant 

offense as a Class A felony—had on a trial court’s options in sentencing a defendant convicted 

of indecent exposure by a sexually delinquent person.” Id.

II

Resolution of this issue requires us to reconcile the optional, alternative sentence of “1 

day to life” provided in MCL 750.335a(2) and other statutes with sexual delinquency provisions 

in the Penal Code with the classification of indecent exposure (and other designated offenses) by 

a sexually delinquent person as a Class A felony subject to the sentencing guidelines as provided 

in MCL 777.16q of the Code of Criminal Procedure.

Although Kelly was issued before the enactment of the legislative sentencing guidelines,

our Supreme Court reaffirmed its interpretation of MCL 750.335a in Arnold III. In Kelly, this 

Court explained:

Sexual delinquency is not merely a penalty enhancement provision related to the 

principal charge; it is an alternate sentencing provision tied to a larger statutory 

scheme.

We conclude that the alternate sentence is an indeterminate term of one 

day to life imprisonment. In interpreting a statute, we apply the rule of ordinary 

usage and common sense. Applying such a rule, the word “shall” generally 
-7-

denotes a mandatory duty. Because the statute at issue provides that the minimum 

of the indeterminate term shall be one day and the maximum shall be life, we 

conclude that that is the prescribed length of the indeterminate term. [Kelly, 186 

Mich App at 528-529 (cleaned up).]

In addition, this Court found that the “indeterminate sentence of one day to life” was not invalid 

under the “indeterminate sentence act, specifically MCL 769.9(2)[.]” Kelly, 186 Mich App at 

529. The Court distinguished between MCL 769.9, which was applicable “only to cases in 

which the maximum sentence authorized by statute is life imprisonment or any term of years,” 

from MCL 750.338a wherein “the only maximum sentence authorized is life imprisonment. 

Moreover, the minimum sentence has been set by statute: one day.” Kelly, 186 Mich App at 530. 

This Court construed “the sexually delinquent sentencing scheme as a specific scheme which 

controls over the general indeterminate sentence act. Sexual delinquency is limited to select 

criminal provisions and thus is a seldom-used category of alternate sentencing.” Id. at 531

(cleaned up). This Court continued, “The sexual delinquency legislation was enacted to provide 

an alternate sentence for certain specific sexual offenses when evidence appeared to justify a 

more flexible form of confinement.” Id. Thus, “the sexually delinquent sentencing scheme” was 

determined to function “as an exception to the indeterminate sentence provision . . . .” Id.

In 1998, the Legislature enacted the statutory sentencing guidelines, which were intended 

to apply to specified enumerated felonies committed on or after January 1, 1999. MCL 777.1 et 

seq.; MCL 769.34(2). “The evident purposes” of the enactment of the “comprehensive 

sentencing reform” “included reduction of sentencing disparity, elimination of certain 

inappropriate sentencing considerations, acceptance of [our Supreme] Court’s [People v Tanner, 

387 Mich 683, 690; 199 NW2d 202 (1972)] rule, encouragement of the use of sanctions other 

than incarceration in the state prison system, and resolution of a potential conflict in the law.” 

People v Garza, 469 Mich 431, 434-435; 670 NW2d 662 (2003). In enacting the legislative 

sentencing guidelines, it is presumed that the Legislature was aware of the existence of the 

sexual delinquency sentencing scheme. People v Rahilly, 247 Mich App 108, 112; 635 NW2d 

227 (2001) (“The Legislature is presumed to be aware of and legislate in harmony with existing 

laws when enacting new laws.”). In particular, the tie-barring of the amendments to MCL 

750.338a and MCL 777.16q reinforces that the inclusion and identification of offenses involving 

sexually delinquent persons as enumerated felonies under the sentencing guidelines was

purposeful and intentional. 

Two statutes that relate to the same subject or share a common purpose are in pari 

materia and must be read together. The goal of the in pari materia rule is to give 

effect to the legislative purpose found in the harmonious statutes. When two 

statutes lend themselves to a construction that avoids conflict, that construction 

should control. [Rahilly, 247 Mich App at 112-113 (cleaned up).]

Specifically:

The object of the in pari materia rule is to further legislative intent by 

finding an harmonious construction of related statutes, so that the statutes work 

together compatibly to realize that legislative purpose. Therefore, if two statutes 

lend themselves to a construction that avoids conflict, that construction should 
-8-

control. Two statutes that form a part of one regulatory scheme should be read in 

pari materia. [People v Butler, 315 Mich App 546, 550; 892 NW2d 6 (2016)

(cleaned up).]

Further, our Supreme Court “has previously recognized that although the Penal Code and the 

Code of Criminal Procedure ‘were separately enacted and have distinct purposes,’ the two codes 

‘relate generally to the same thing and must therefore be read in pari materia. . . .’ ” People v 

Washington, 501 Mich 342, 354 n 29; 916 NW2d 477 (2018), quoting People v Smith, 423 Mich 

427, 442; 378 NW2d 384 (1985) (opinion by WILLIAMS, C.J.).

In Smith, 423 Mich 427, our Supreme Court offered insight in how to reconcile

discrepancies between the Penal Code and the Code of Criminal Procedure, there provisions 

regarding the definition and distinctions between a misdemeanor and felony. The Court prefaced 

its analysis by stating, “Statutes which relate to the same persons or things, or which have a 

common purpose, are to be read in pari materia, and a strict construction will not be given to one 

statute where doing so would defeat the main purpose of another on the same subject.” Id. at

441-442. More specifically, the Court recognized, citing the preambles to the relevant codes:

While the Penal Code and the Code of Criminal Procedure relate generally 

to the same thing and must therefore be read in pari materia, the two codes were 

separately enacted and have distinct purposes. As concerns this case, the purpose 

of the Penal Code is to define crimes and prescribe the penalties therefor. The 

purpose of the Code of Criminal Procedure is to codify the laws relating to 

criminal procedure.

Included in the Code of Criminal Procedure are provisions for the proper 

procedures to be followed, for example: upon arrest, at the preliminary 

examination, at trial, and at judgment and sentencing. The Legislature expressly 

provided that the Code of Criminal Procedure be deemed “remedial” and be 

“liberally construed to effectuate the intents and purposes” of the act. MCL 

760.2. [Smith, 423 Mich at 442 (cleaned up).]

In resolving the distinctions between the definitions in the Penal Code and the Code of Criminal 

Procedure, the Court opined, “It is obvious that the Penal Code definitions apply only to the 

Penal Code. Similarly, the definitions of the Code of Criminal Procedure are limited in 

application to that code.” Id. at 444.

Significantly, the Smith Court stated, “We have previously held that the grade given an 

offense in the Penal Code is not the controlling consideration in determining the procedural 

rights afforded an accused outside the Penal Code.” Id. The Court further explained with regard 

to the distinction between the definitions of a misdemeanor and a felony in the Penal Code and 

the Code of Criminal Procedure:

The label placed upon an offense in the Penal Code is just as irrelevant in 

determining statutorily mandated post-conviction procedures in the Code of 

Criminal Procedure as it is in determining constitutionally mandated postconviction procedures. The three post-conviction statutes at issue here, the 
-9-

habitual-offender statute, the probation statute, and the consecutive sentencing 

statute, all have the same general purpose: to enhance the punishment imposed 

upon those who have been found guilty of more serious crimes and who 

repeatedly engage in criminal acts. In order to achieve the Legislature’s intended 

purpose in the Code of Criminal Procedure, we find that the Legislature meant 

exactly what it said: Offenses punishable by more than one year of imprisonment 

are “felonies” for purposes of the habitual-offender, probation, and consecutive 

sentencing statutes. Because misdemeanors punishable by two years of 

imprisonment fall within the “felony” definition, they may be considered felonies 

for purposes of these statutes. [Id. at 445.]

The Court denied that this analysis or reading of the statutory provisions rendered language 

either superfluous or redundant, indicating “that the definitions in each code have full meaning 

for all the purposes of that code, but are not simply transferable to the other code.” Id. at 446 n 

2. This analysis is equally applicable to the discrepancy or disconnect in sentencing options 

between MCL 750.335a of the Penal Code and MCL 777.16q of the Code of Criminal 

Procedure.

Defendant suggests that sexual delinquency is not an offense, but rather an alternative 

sentencing scheme that only attaches to specified predicate felony offenses. As such, sexual 

delinquency is not a felony enumerated in the Penal Code for purposes of MCL 777.16q and falls 

outside the guidelines. This is either an oversimplification or mischaracterization of the law. 

Defendant was sentenced for indecent exposure and also was identified as a sexual delinquent. 

The enumerated predicate felony, which is included in the Penal Code, MCL 750.335a, and the 

Code of Criminal Procedure, MCL 777.16q, is indecent exposure, with the sexual delinquency 

component being construed “as a separate, alternate form of sentencing.” Arnold III, 502 Mich 

at 471 (cleaned up). The difficulty is in reconciling the sentencing options available rather than 

disputing that the predicate felonies are included in both the Penal Code and Code of Criminal 

Procedure. That sexual delinquency does not comprise a separate or stand-alone offense in the 

Code of Criminal Procedure does not resolve the issue presented.

Given the context, as discussed above, our Supreme Court’s holdings in Arnold III serve 

to define the sentencing parameters for individuals convicted of indecent exposure as a sexually 

delinquent person. In Arnold III, 502 Mich at 444-477, the Court expended considerable time 

and effort tracing the history of sexual delinquency. Focus was placed on the efforts of the 

Legislature to “create a different sentencing option” for individuals identified as sexually

delinquent to provide “therapeutic and open-ended” alternatives for those offenders viewed as 

having “a form of mental illness” requiring “treatment.” Id. at 471. Premised on our Supreme 

Court’s discussion and findings, the “1 day to life” sentence is “an alternative sentencing 

option,” which “existed alongside other options, such as a life sentence or a term of years.” As 

explained, the “ ‘1 day to life’ sentence was a mutually exclusive concept that a sentencing judge 

was free to opt for to the exclusion of a life- or term-of-years sentence.” Id. at 472-473. 

The Court’s favorable adoption of Kelly emphasizes that the sentence of “1 day to life”

comprises “a nonmandatory option that a trial court could draw upon should it choose to exercise 

its discretion to do so.” Id. at 473. Specifically, in finding that “Kelly was rightly decided,” the 

Court emphasized “that MCL 750.335a did not prescribe anything; instead, it only made an 
-10-

option available.” Arnold III, 502 Mich at 477. This comports with the Court’s earlier decision 

in Smith, 423 Mich at 445, recognizing the distinctions between the Penal Code and Code of 

Criminal Procedure while simultaneously acknowledging the purpose of the Code of Criminal 

Procedure “to enhance the punishment imposed upon those who have been found guilty of more 

serious crimes and who repeatedly engage in criminal acts.” As is the circumstance here, where 

defendant is a fourth habitual offender, the sentencing guidelines provide yet another sentencing 

alternative for individuals convicted of indecent exposure as a sexual delinquent. Between the 

Penal Code and the Code of Criminal Procedure, the judge in this case would be afforded options 

in sentencing, premised on the severity of the behavior and the particular characteristics of the 

offender, encompassing: (a) 1 day to life for indecent exposure by a sexually delinquent person, 

MCL 750.335a(2)(c), or (b) a sentence premised on a scoring of the guidelines, MCL 777.16q, 

which in this case could be enhanced under the habitual offender statute, MCL 777.21. This 

conforms with the reasoning of the Court in Arnold III, 502 Mich at 479-480, after discussing the 

wording of MCL 750.335a(2)(c) and recognizing:

MCL 750.335a(2)(c) still says only that the offense is punishable by a “1 day to 

life” sentence, and “punishable” expresses only the possibility of punishment, not 

its necessity. Moreover, MCL 767.61a has not been amended, meaning that it 

still characterizes “1 day to life” as an “alternate” sentence, not a mandatory 

sentence. Indeed, MCL 767.61a has always phrased the indeterminate sentence 

option in the same fashion as the postamendment version of MCL 750.335a: “the 

minimum of which is 1 day and the maximum of which is life.” And MCL 

767.61a lays out a procedure common to all five sexual-delinquency crimes, yet 

each of the other four still uses the former “may be punishable” and “shall be 1 

day . . . shall be life” wording. The sexual delinquency alternative sentence is 

obviously intended to work the same for all five offenses, so if it is optional for 

the others, it must still be optional for indecent exposure. All signs point to the 

2005 amendment adding only the aggravated indecent-exposure offense [to MCL 

750.335a] and making no substantive changes to the “1 day to life” alternative 

sentence.

The most rational construction is that the Penal Code provides judges with certain 

options, not mandates, when confronted with an individual convicted of indecent exposure as a 

sexual delinquent. Trial courts may consider sentencing options consistent with the guidelines,

particularly when the trial court determines that factors governed by the Code of Criminal 

Procedure, such as an offender’s status as a habitual offender, supply an appropriate mechanism 

“to enhance the punishment imposed upon those who have been found guilty of more serious 

crimes and who repeatedly engage in criminal acts.” Smith, 423 Mich at 445. This approach 

harmonizes the history of sexual delinquency sentencing with the more recent recognition that 

when sentences are imposed they should be “proportional to the seriousness of the circumstances 

surrounding the offense and the offender,” and that “the proper approach to sentencing is to favor 

individualized sentencing for every defendant.” People v Sabin, 242 Mich App 656, 661; 620 

NW2d 19 (2000). As recently discussed in People v Odom, ___ Mich App ___; ___ NW2d ___ 

(2019) (Docket No. 339027); slip op at 8-9:

The purpose of the proportionality requirement is to combat unjustified disparity 

in sentencing, thereby ensuring that similar offense and offender characteristics 
-11-

receive substantially similar sentences. Under our system of sentencing, this 

principle of proportionality is first entrusted to the Legislature, which is tasked 

with grading the seriousness and harmfulness of a given crime and given offender 

within the legislatively authorized range of punishments. [Cleaned up.]

“Although the Legislature’s guidelines are advisory, they remain a highly relevant consideration 

in a trial court’s exercise of its sentencing discretion.” Id. at 9.

Ultimately, the relevant statutory provisions in the Penal Code and the Code of Criminal 

Conduct—MCL 750.335a and MCL 777.16q—must be read in pari materia. Kelly, Smith, and 

the language of the relevant statutes counsel that a trial court has the option to sentence a 

defendant to “1 day to life” under MCL 750.335a(2)(c), or to a term consistent with the advisory 

sentencing guidelines.

III

Defendant urges that the “rule of lenity” requires us to declare the legislative sentencing 

guidelines inapplicable. “The ‘rule of lenity’ provides that courts should mitigate punishment 

when the punishment in a criminal statute is unclear.” People v Johnson, 302 Mich App 450, 

462; 838 NW2d 889 (2013) (cleaned up). The rule, however, “applies only in the circumstances 

of an ambiguity, or in the absence of any firm indication of legislative intent.” People v 

Wakeford, 418 Mich 95, 113-114, 341 NW2d 68 (1983). “A provision is not ambiguous just 

because reasonable minds can differ regarding the meaning of the provision. Rather, a provision 

of the law is ambiguous only if it “irreconcilably conflict[s]” with another provision, or when it 

is equally susceptible to more than a single meaning.” People v Gardner, 482 Mich 41, 50 n 12; 

753 NW2d 78 (2008) (cleaned up).

As noted, the Legislature clearly intended to include indecent exposure by a sexually 

delinquent person as offenses within both the Penal Code and the Code of Criminal Procedure. 

The intent of the Legislature to provide alternative sentencing options for individuals convicted 

of this offense obviates the existence of any ambiguity, rendering the rule of lenity inapplicable. 

See People v Perry, 317 Mich App 589, 605-606; 895 NW2d 216 (2016) (“Given the clear 

indication of legislative intent and the absence of ambiguity, the rule of lenity does not apply.”).

IV

Defendant further contends, “If this Court finds that MCL 750.335a(2)(c) is an 

enumerated felony subject to sentencing under the guidelines by its inclusion in MCL 777.16q, 

then the sentencing guidelines act [w]as a revision, amendment, or repeal of the inconsistent 1 

day to life sentencing provision” and “is unconstitutional.” “No law shall be revised, altered or 

amended by reference to its title only. The section or sections of the act altered or amended shall 

be re-enacted and published at length.” Const 1963, art 4, § 25. Our Supreme Court has 

explained: 

[Section] 25 is worded to prevent the revising, altering or amending of an act by 

merely referring to the title of the act and printing the amendatory language then 

under consideration. If such a revision, alteration or amendment were allowed, 
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the public and the Legislature would not be given notice and would not be able to 

observe readily the extent and effect of such revision, alteration or amendment. 

[Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 470; 208 

NW2d 469 (1973).]

“[I]f an act is complete within itself, it does not fall within the constitutional prohibition.” 

People v Meeks, 92 Mich App 433, 444; 285 NW2d 318 (1979). Specifically, § “25 is directed 

at preventing undesirable conduct with respect to amendment of a particular act. It does not seek 

to correct tangential effects which the amendment, revision or alteration may have on those 

statutes not directly affected.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 

at 475. “[A]mendment by implication is not the evil sought to be avoided by [Const 1963, art 4, 

§ 25].” People v Hughes, 85 Mich App 674, 681; 272 NW2d 567 (1978). 

The legislative sentencing guidelines do not amend or change the language of the Penal 

Code, specifically MCL 750.335a. The statutory provisions at issue, MCL 750.335a and MCL 

777.16q, are independent and complete and do not necessitate reference to another statute to 

ascertain their meaning. Any inclusion by reference is not violative of Const 1963, art 4, § 25. 

Despite what might have comprised an illegal sentence for indecent exposure by a sexually 

delinquent person at the time of enactment of the legislative sentencing guidelines, the tie-barred 

amendments to MCL 777.16q and MCL 750.335a remedied any potential conflict.

V

Our Supreme Court also suggested that the holdings in People v Frontczak, 286 Mich 51; 

281 NW 534 (1938), and In re Boulanger, 295 Mich 152; 294 NW 130 (1940), may be relevant 

in the resolution of this matter. Arnold III, 502 Mich at 482 n 20.

In Frontczak, 286 Mich at 53, the defendant was convicted of gross indecency and 

sentenced to 30 days to 5 years in prison. The Legislature subsequently enacted 1937 PA 196, 

which subjected a criminal defendant to hospitalization before initiation of his criminal sentence 

and allowed then-incarcerated defendants to be transferred to a hospital until the defendant’s 

purported deviance was cured. Frontczak, 286 Mich at 55-58. The state commissioner of 

pardons and paroles then filed a petition in the local circuit court, invoking the new statutory 

provision and seeking to have the defendant committed to a state hospital. Id. at 53-54. 

Specifically, our Supreme Court determined that this procedure was unconstitutional under Const 

Art 2, § 19:

[B]y the 1937 act, if considered a part of criminal procedure, is void, as subjecting 

an accused to two trials and convictions in different courts for a single statutory 

crime, with valid sentence interrupted by supplementary proceeding in another 

court, with confinement in a non-penal institution and with possible resumption of 

imprisonment under the original sentence. If not for a single offense, then one 

trial is for a penalized overt act and the other for having a mental disorder, 

characterized by marked “sexual deviation.” [Frontczak, 286 Mich at 58.]
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“Hospitalization, with curative treatment and measures may be desirable but, until the law makes 

a sane person amenable to compulsory restraint as a sex deviator, it falls short of due process in 

merely providing procedure.” Id. at 59.

In Boulanger, 259 Mich at 153, the defendant pleaded guilty to gross indecency, with his 

sentencing deferred pending appointment of a sanity commission, which ultimately did not find

the defendant insane, but rather “psychopathic or a sex degenerate or sex pervert and dangerous 

to public safety.” The defendant was sentenced to six months in jail to be followed by 

commitment to a state hospital “until this court shall adjudge you cease to be a menace to public 

safety.” Id. at 154. The defendant filed a petition for habeas corpus based on his sentencing to 

dual punishments. Id. at 156. Our Supreme Court, relying in part on Frontczak, found no 

authority permitting the Court to commit the defendant to hospitalization arising from his 

criminal conviction. Id.

Neither Frontczak nor Boulanger is relevant to the issue presented in this remand. There 

is no request or attempt to impose dual punishments for defendant, or a punishment that is not 

authorized by law. Defendant received only one of the sentencing options provided by statute. 

When defendant committed his offense, MCL 750.335a and MCL 777.16q provided multiple, 

but exclusive, sentencing options. Unlike the defendants in Frontczak and Boulanger, the 

current defendant did not face a series of penalties for his single act.

We vacate defendant’s sentence and remand for further sentencing proceedings. We do 

not retain jurisdiction.

/s/ Elizabeth L. Gleicher 

/s/ Christopher M. Murray 

/s/ Mark J. Cavanagh