FILED May 11, 2010

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 136956 LARRY EUGENE WILCOX, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

K ELLY , C.J.

At issue in this case is whether the legislative sentencing guidelines 1 apply to defendant’s 10-year minimum senten ce imposed under MCL 750.520f, the repeat criminal sexual conduct (CSC) offender statute. In deciding the issue, we

must also determine what constitutes the “mandatory minimum” sentence referred to in MCL 750.520f(1), which requires a mi nimum sentence of “at least 5 years.”

Defendant contends that the statute’s mandate is simply 5 years, whereas the prosecution contends that the stat ute mandates any minimum sentence of 5 years or more. If we accept defendant’s argument, his 10-year minimum sentence

1 MCL 777.1 et seq. Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 was a departure from the guidelines recommendation and he is entitled to resentencing. The trial court did not pr ovide substantial and compelling reasons justifying a departure. 2 If we agree with the prosecution, defendant’s 10-year minimum sentence was not a departure because the Legislature has explicitly stated that a mandatory minimum sentence is not a departure. 3 The Court of Appeals agreed with the prosecution, conc luding that “[b]ecause defendant’s 10- year minimum sentence is ‘at least’ five years, it satisfies the requirements of [MCL 750.520f].” 4 We conclude that the guidelines apply to defendant’s sentence and that the “mandatory minimum” sentence in MCL 750.520f(1) is a flat 5-year term. Because the trial court imposed a 10-year minimum sentence that exceeded both the applicable guidelines range and the 5-year mandat ory minimum, defendant’s sentence was a departure from the guidelin es. However, the tr ial court did not state substantial and compelling reasons justifying a departure, let alone any reasons justifying the particular depart ure made. Therefore, we reverse the judgment of the Court of Appeals and remand the case for resentencing.

2 People v Smith , 482 Mich 292; 754 NW2d 284 (2008). Because the trial court in this case believed that the gui delines were inapplicable, it did not articulate reasons warranting a departure. Thus, it failed to offer substantial and compelling reasons justifying the extent of the particular departure made, as required by Smith , 482 Mich at 295.

3 MCL 769.34(2)(a) states in part th at “[i]mposing a mandatory minimum sentence is not a departure under this section.”

4 People v Wilcox , 280 Mich App 53, 57; 761 NW2d 466 (2008).3 FACTS AND PROCEDURAL HISTORY Larry Wilcox was charged with first- degree CSC. The felony information

notified him that he faced an enhanced sentence under MCL 750.520f as a repeat

CSC offender and under MCL 769.10 as a second-offense habitual offender. At trial, the prosecutor introduced two docum ents into evidence in support of the repeat offender enhancements. They established that defendant had been convicted of second-degree CSC 5 in 1987. The jury convicted defendant as ch arged. His sentencing information report calculated the applicable guidelines minimum sentence range as 27 to 56 months. After acknowledging that MCL 7 50.520f applied, the trial judge imposed a sentence of 10 to 40 years. The ju dge did not indicate that the 120-month minimum sentence was a departure from the guidelines range and did not provide a substantial and compelli ng reason for departing. Defendant appealed as of right. The Court of Appeals affirmed his conviction and sentence in a published op inion. The panel summarily dismissed his argument that the sentence improperly exceeded both the sentencing guidelines range and the 5-year mandatory mi nimum sentence established by MCL 750.520f(1). 6 The panel further opined that defendant’s sentence was not a

5 MCL 750.520c.

6 Wilcox , 280 Mich App at 57.4 departure from the guidelines, implicitly concluding that th e guidelines were inapplicable because defendant had been sentenced under MCL 750.520f. 7 We granted defendant’s application for leave to appeal, limited to the issue whether the sentencing guidelines applied to the sentence and, if so, whether defendant is entitled to resentencing. 8

STANDARD OF REVIEW

We review issues of stat utory interpretation de novo. 9 Our primary goal is to give effect to the in tent of the Legislature. 10 The first step in ascertaining intent is to focus on the language of the statut e. If the language is unambiguous, we presume that the Legislature intended the meaning expressed. 11

7 Id. Oddly, just two days earlier, the same panel of the Court of Appeals came to the opposite conclusion in anothe r case and determined that the guidelines did apply to sentences impos ed under MCL 750.520f. People v Walton , unpublished opinion per curiam of the Court of Appeals, issued June 3, 2008 (Docket No. 276161). In Walton , the trial court concluded that the guidelines did not apply to sentences imposed under MC L 750.520f. The panel vacated defendant’s sentence and remanded for rese ntencing based on its conclusion that “the actual offense defendant committed” was first-degree CSC, an enumerated felony to which the guidelines apply. Walton , unpub op at 3.

8 People v Wilcox , 483 Mich 1094 (2009).

9 Hunter v Hunter , 484 Mich 247, 257; 771 NW2d 694 (2009).

10 Brown v Detroit Mayor , 478 Mich 589, 593; 734 NW2d 514 (2007).

11 Id

.5 ANALYSIS

Resolution of the issue in this case depends on how the statutes discussing the application of the sentencing guideli nes interact with MCL 750.520f. MCL 769.34(2) describes the offenses to which the sentencing guidelines apply: Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimu m sentence imposed by a court of this state for a felony enumer ated in part 2 of chapter XVII committed on or after January 1, 1999 shall be within the appropriate sentence range under th e version of those sentencing guidelines in effect on the date the crime was committed. Thus, the sentencing guidelines apply to felonies enumerated in part 2 of chapter XVII of the Code of Criminal Procedure, MCL 777.11 through 777.19, committed on or after January 1, 1999, except as otherwise provided in MCL 769.34(2). Defendant was convi cted of first-degree CSC, 12 which is a felony enumerated in MCL 777.16y. It is undisputed that he committed the offense after January 1, 1999. Therefore, the sentencing guidelines a pply to his sentence absent an exception elsewher e in the statute. MCL 769.34(2) does prov ide exceptions to th e applicability of the sentencing guidelines. MCL 7 69.34(2)(a) contains the exception at issue here. It

states: If a statute mandates a minimu m sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose sentence in ac cordance with that statute.

12 MCL 750.520b.6 Imposing a mandatory minimum se ntence is not a departure under this section. If a statute mandates a minimum sentence for an individual sentenced to the juri sdiction of the department of corrections and the statute authorizes the sentencing judge to depart from that minimum sentence, impos ing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departur e under this section. If the Michigan vehicle code, 1949 PA 300, MCL 257. 1 to 257.923, mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the Michigan vehicle code, 1949 PA 300, MCL 25 7.1 to 257.923, authorizes the sentencing judge to impose a sentence that is less than that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than th e mandatory minimum sentence is not a departure under this section. [Emphasis added.] The parties do not dispute that MC L 750.520f provides for a mandatory minimum sentence, putting it within th e purview of MCL 769.34(2)(a). MCL 750.520f(1) provides: If a person is convicted of a se cond or subsequent offense under [MCL 750.520b, 750.520c, or 750.5 20d], the sentence imposed under those sections for th e second or subsequent offense shall provide for a mandatory mini mum sentence of at least 5 years. [Emphasis added.] The dispositive question is whether the mandatory minimum sentence established by MCL 750.520f(1) is “at leas t 5 years” or simply a flat 5-year

minimum sentence. Defenda nt contends that the 5- year minimum is the only sentence that is mandatory and that any sentence above 5 years is permissive. Therefore, defendant argues, any mini mum sentence exceeding 5 years is permissible rather than mandated; as a consequence, it is governed by the guidelines. Defendant states that, if th e minimum sentence exceeds the range set by the guidelines, it must be justified by substantia l and compelling reasons.7 Because his 10-year minimu m sentence exceeded both the 5-year mandatory minimum and the applicable guidelines ra nge, defendant argues that his sentence constituted a departure. The prosecution counters that the words “at least” indicate a legislative intent that any minimum sentence im posed under MCL 750.520f may exceed 5 years, regardless of the guidelines range. Therefore, the prosecution argues, any minimum sentence imposed on a repeat CSC offender under MCL 750.520f is limited only by the “two-thirds rule ” contained in MCL 769.34(2)(b). 13 Because defendant’s 10-year minimum is “at least 5 years” and does not exceed two-thirds of the maximum sentence imposed (40 year s), the prosecution concludes that the sentence complied with MCL 769.34(2)(a) and (b). We reject the prosecution’s argument. The use of the words “at least” in MCL 750.520f(1) does not grant trial c ourts the discretion to impose minimum sentences that are subject only to the limit ation of the two-thirds rule. Such an interpretation is inconsistent with MCL 769.34(2)(a). Also, it is contrary to a central purpose of the sentencing guidelines —greater uniformity in sentencing. 14

13 MCL 769.34(2)(b) provides that “[t] he court shall not impose a minimum sentence, including a departure, that exceeds 2/3 of the statutory maximum sentence.”

14 Smith , 482 Mich at 312 & n 46. The di ssent seizes on this sentence and argues as though our decision hinges solely on it. Post at 6-7. The dissent apparently believes that referring to the purpose underlying the enactment of the sentencing guidelines somehow evidences th at we are deviating from the language of the statute. We do not vi ew this reference as a remark able one, as it is one we8 The first sentence of MCL 769.34(2)(a) provides that, if a statute mandates a minimum sentence, “the court shall im pose sentence in accordance with that

statute.” The next sentence states that imposing a mandatory minimum sentence is not a departure from the sentencing guidelin es. The difference in the language of the two sentences is of critical importance. The first states that, when a statute like MCL 750.520f provides fo r a mandatory minimum sentence, the court must impose a sentence “in accordance with” the statute. This wording provides for a sentence that merely conforms with, bu t is not necessarily compelled by, the

statute at issue. 15 Because it is “at least 5 year s,” defendant’s 10-year minimum sentence is unquestionably in ac cordance with MC L 750.520f. By contrast, the second sentence of MCL 769.34(2)(a) lacks the broad wording “in accordance with” th at is present in the first sentence. It provides only that “[i]mposing a mandatory minimum se ntence is not a departure” from the sentencing guidelines. This linguistic distinction is critical because, given the statute’s language, only the mandatory minimum sentence is not a departure from the guidelines. Notably, th e statute does not specify that a sentence imposed “in

have made before, including in Smith , an opinion that the author of the dissent signed. Moreover, the dissent entirely ignores our discussion of the statutory language on pp 8-10 of this opinion.

15 A lay dictionary’s definitions of “accordance” include “agreement; conformity: in accordance wi th the rules .” Random House Webster’s College Dictionary (2001).9 accordance with” a statute providing a mandatory mini mum sentence is “not a departure.” Therefore, the proper interpretation of these statutes hinges on the extent to which MCL 750.520f(1) is “man datory,” so that a senten ce compelled by it is not a departure under MCL 769.34(2)(a). One definition of “mandatory” is “authoritatively ordered; obligatory.” 16 “Mandatory” and, in particular, “mandatory minimum” are also legal terms of art. As such, reference to a legal dictionary is appropriate. 17 Black’s Law Dictionary de fines “mandatory” as “[o]f, relating to, or constituting a co mmand; required; preemptory.” 18 Although Black’s

contains no definition for “mandatory minimum,” it defi nes “mandatory sentence” as “[a] sentence set by law with no discretion for the judge to individualize punishment.” 19 Applying these definitions to MCL 750. 520f(1), we must conclude that the only minimum that is “mandatory” in the stat ute is 5 years. Five years is the only minimum sentence in MCL 750.520f(1) that is “set by law with no discretion for the judge to individualize punishment.” 20 By contrast, the words “at least” are

16 Id.

17 MCL 8.3a; People v Jones , 467 Mich 301, 304; 651 NW2d 906 (2002).

18 Black’s Law Dictionary (8th ed), p 981.

19 Id. at 1394.

20 The dissent is correct that “5 years is the starting point of the minimum sentence, not its upper terminus.” Post at 4. But the dissent fails to acknowledge10 permissive. They authorize a higher mi nimum sentence, such as the 10-year minimum imposed here, but nothing in the statute mandates that the minimum sentence exceed 5 years. Although MCL 750.520f(1 ) authorizes a minimum sentence in excess of 5 years, it does not mandate it. 21 The prosecution argues that this in terpretation of the statute renders nugatory the words “at least.” 22 We disagree. The use of “at least” in MCL 750.520f(1) authorizes cour ts to impose minimum sentences of 5 years or more. However, because only 5 years is manda tory, MCL 769.34(2)(a) exempts only a 5-year minimum sentence from the depa rture provision in MCL 769.34(3). Hence, if a minimum sentence under MC L 750.520f(1) exceeds 5 years and is higher than the top of the applicable guidelines range, it constitutes a departure. The judge must articulate substantial and compelling reasons for it.

that this 5-year “starti ng point” is the only trul y mandatory aspect of MCL 750.520(f)(1). The “upper terminus” of a defendant’s minimum sentence is controlled by the top of the applicable guidelines range, unless the trial court articulates substantial and compelling reasons for an upward departure.

21 For example, in the case at bar, th e guidelines range topped out at 56 months, but MCL 750.520f(1) required th e court to impose a minimum sentence of 5 years. If a 5-year minimum senten ce had been imposed, it would not have been considered a departure sentence pursuant to MCL 769.34(2)(a), even though it exceeded the guidelines range by 4 months.

22 “Every word of a stat ute should be given mean ing and no word should be treated as surplusage or rendered nugatory if at all possible.” Baker v Gen Motors Corp , 409 Mich 639, 665; 2 97 NW2d 387 (1980), citing Stowers v Wolodzko , 386 Mich 119, 133; 19 1 NW2d 355 (1971), and Scott v Budd Co , 380 Mich 29, 37; 155 NW2d 161 (1968).11 The language “at least” in MCL 750. 520f(1) is not in the least rendered nugatory under this analysis. In fact, it comes into play often. Any offender convicted of a repeat CSC offense whos e guidelines range exceeds 5 years may properly receive a minimum sentence of “at least 5 years.” For example, a repeat CSC offender whose guidelines range is 180 to 240 mont hs may properly receive

a 200-month minimum sentence. Such a se ntence would be permissible because it meets the mandatory provision of MCL 75 0.520f(1) in that it is not less than 5 years. The additional 140 months in ex cess of 5 years also complies with MCL 769.34(2) because the sent ence is within the applic able guidelines range. 23 Moreover, to accept the prosecution’ s interpretation would undermine the legislative intent behind the sentencing gui delines statutes and potentially lead to arbitrary sentencing. Allowing trial courts to ignore the guid elines when imposing

a sentence under MCL 750.520f could lead to similarly situated defendants receiving wholly disparate sentences. For example, under the prosecution’s in terpretation, a repeat CSC offender like defendant, whose guidelines range contemplates a rela tively low minimum sentence, could nevertheless rece ive a 60- to 90-year sentence. 24 Such a harsh minimum sentence would not require that the trial court give substantial and

23 Indeed, if the guidelines range were 180 to 240 months and the trial court imposed a minimum sentence of 120 mo nths, that minimum sentence would constitute a downward departure.

24 The dissent does not address this anomaly.12 compelling reasons justifying the disparity between the guidelines range and the actual minimum sentence imposed. By contrast, a recidivist offender subj ect to a guidelines range that far exceeds the 5-year mandatory minimum co uld receive a sentence far below the guidelines range. The trial court could im pose the 5-year minimum without being required to provide a justifica tion for the downward departure. 25 However, the

25 The dissent’s contention that our opinion creates “a new, but unexplained, statutory scheme for mandatory minimum sentences” is mistaken. Post at 7. A 5-year minimum sentence for a defendant with a guidelines range of 7 to 10 years would inde ed constitute a downward departure under MCL 769.34(2)(a). When the lower end of the gui delines range is 5 years or greater, a trial court that imposes a sentence of 5 years or more is no longer imposing a “mandatory” minimum. Rather, the cour t is merely imposing a sentence, as required by MCL 769.34(2)(a ), that is “in accordance with” MCL 750.520f(1). By contrast, the 5-year minimum is “mandatory” when the guidelines range tops out below 5 years. In those circ umstances, a 5-year sentence is truly the mandatory minimum sentence, so it is not a departure. It is hardly inconsistent to conclude that a 5-year sentence is no longer mandatory when a defendant’s guidelines range expressly contempl ates a higher minimum sentence. The dissent cites several criminal stat utes that provide for indeterminate mandatory minimum sentences, using language such as “ not less than [X] years.” See post at 4 n 9. It then argues that “the majority reads out of our law books the indeterminate nature of these mandatory minimum sentences and replaces those sentences with absolute minimum terms that the Legislature did not enact.” Post at 4-6. This is incorrect. Under the majority opinion, a judge remains free to impose any minimum sentence that is consis tent with the guidelines range, subject to the two-thirds rule. Our opinion simply makes clear that, where a judge imposes a minimum sentence in excess of the lowest permissible minimum sentence, it must be consistent with the gu idelines. Hence, if the guidelines range tops out below the minimum sentence the court wishes to impose, the judge needs to provide substantial and compelling reas ons for exceeding the guidelines. Our opinion does not “read[] out of our law books” the indeterminate nature of mandatory minimum statutes by replacing th em with absolute minimum terms.13 defendant in question could be subject to a guidelines range contemplating, for example, at least a 20-year minimum term. Given the Legislature’s stated goal in enacting the guidelines of promoting uniform ity in sentencing, we believe that this is not a result that the Legislature contemplated. Defendant’s applicable guidelines mi nimum sentence range was 27 to 56 months. Under MCL 750.520f(1), the tr ial court was required to impose a minimum sentence of “at least 5 years.” However, because 5 years is the only truly minimum sentence that is mandato ry under MCL 750.520f(1), any minimum sentence exceeding 5 years must fall with in the applicable guidelines range. Otherwise, the sentence would not be “a mandatory minimum sentence.” It would constitute a departure from the sentencing guidelines, and the co urt would have to articulate substantial and compelling reason s for the extent of its departure. The trial court’s 10-year minimum sent ence in this case constituted an upward departure from the sentencing gu idelines. The court did not articulate

By way of illustration, if a statute provid es that the minimum sentence shall be “at least two years,” the trial court can im pose a minimum sentence higher than two years. But if it wants to provide a mini mum sentence higher than the top of the guidelines range, it must articulate substan tial and compelling reasons for it. If the guidelines range is 12 to 24 months fo r a crime requiring a two-year minimum sentence and if the court wants to impos e a three-year minimum sentence, it may do so. But it must provide substantial and compelling reasons for the upward departure. Concomitantly, if the guidelines range is 36 to 48 months and the court wishes to impose a two-year minimum se ntence, it must provide substantial and compelling reasons for imposing a downward departure. Contrary to the dissent, requiring compliance with th e articulation requirements of the guidelines does not replace an indeterminate minimum sentence with an absolute minimum sentence.14 substantial and compelling reasons for the ex tent of its departure. Accordingly, defendant is entitled to resentencing.

CONCLUSION We hold that the legislative sent encing guidelines apply to minimum sentences in excess of 5 years that are imposed under MCL 750. 520f. We further hold that, for purposes of applying MCL 769.34(2)(a), the “ma ndatory minimum”

sentence referred to in MCL 750.520f (1) is a flat 5-year term. Here, the trial court imposed a 10-year minimum sentence that exceeded both the applicable guidelin es minimum sentence range and the 5-year mandatory minimum. Therefore, defendant’s senten ce was a departure fro m the guidelines.

Because the trial court did not state subs tantial and compelling reasons justifying its departure pursuant to Smith , we reverse the judgment of the Court of Appeals and remand the case for resentencing.

Marilyn Kelly Michael F. Cavanagh Stephen J. Markman Diane M. HathawayS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 136956 LARRY EUGENE WILCOX, Defendant-Appellant.

W EAVER , J. ( dissenting ). I dissent and would affirm the judgme nt of the Court of Appeals for the

reasons stated in Justice Y OUNG ’s dissent with the exce ption of his citation in

footnote 4 of People v Smith , 482 Mich 292; 754 NW2d 284 (2008), a case in

which I dissented.

Elizabeth A. WeaverS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 136956 LARRY EUGENE WILCOX, Defendant-Appellant.

Y OUNG , J. ( dissenting ). I dissent from the majority’s conc lusion that the 10-year minimum sentence, imposed by the sentencing court pursuant to the repeat criminal sexual conduct (CSC) offender mandatory minimum sentence requirement, 1 represents a departure from the legisla tive sentencing guidelines. 2 Instead, I would affirm the judgment of the Court of Appeals. The sentence imposed here is excepted from the statutory guidelines and thus the sent encing court is not required to state “substantial and compelling reasons” for the minimum sentence imposed, as the majority now requires.

1 MCL 750.520f(1).

2 MCL 777.1 et seq

.2 Defendant was convicted of first-degr ee CSC for digitally penetrating the vagina of his daughter. Because he prev iously was convicted of second-degree CSC, he was sentenced as a repeat CSC offender to a minimum of 10 years in prison. 3 On appeal, defendant argued th at his 10-year minimum sentence represented an upward departure from th e legislative sentencing guidelines and that the sentencing court failed to articul ate substantial and compelling reasons to justify the upward departure. 4 The prosecution claimed that defendant’s minimum

sentence did not constitute a departure because it comp lied with the repeat CSC offender mandatory minimum sentence requirement, and the Court of Appeals agreed. MCL 769.34(2)(a) places mandatory minimum sentences within the framework of the legislative sentencing gu idelines and provides, in relevant part:

If a statute mandates a minimum sentence for an individual sentenced to the jurisd iction of the department of corrections, the court shall impose sentence in accordance with that statute

. Imposing a mandatory minimum sent ence is not a departure under this section. [5] Thus, the statutory guidelines defer to an other statute that specifies a mandatory

minimum sentence. “That statute” in this ca se is MCL 750.520f(1). It creates just such a mandatory minimum sentence for recidivist sex offenders:

3 Defendant’s maximum sentence of 40 years is not at issue in this case.

4 See People v Smith , 482 Mich 292; 754 NW2d 284 (2008). Defendant’s minimum sentence guidelines range was calculated at 27 to 56 months.

5 Emphasis added.3 If a person is convicted of a se cond or subsequent offense under [MCL 750.520b, 750.520c, or 750.5 20d], the sentence imposed under those sections for th e second or subsequent offense shall provide for a mandatory minimum sentence of at least 5 years. [6] Here, defendant’s 10-year minimum sent ence was “in acco rdance with” the mandatory minimum sentence of “at leas t 5 years.” Moreover, as the sentencing court imposed “a mandatory minimum sentence”—a sentence of “at least 5 years”—that sentence was not a departure from the guidelines and the court was not required to justify the minimum sent ence imposed. Ther efore, the sentence imposed by the sentencing court sa tisfies both MCL 769 .34(2)(a) and MCL 750.520f(1), as applied here in conformance with th eir clear and unambiguous meanings. Yet the majority di sagrees; the question is why?

I. THE MAJORITY FAILS TO CONSTRUE THE STATUTE IN ACCORDANCE WITH IT S PLAIN LANGUAGE The majority claims that the mandatory minimum sentence articulated in MCL 750.520f(1) is “5 years,” not “at least 5 years,” as the statute plainly reads. Such a conclusion is obviously wholly inconsistent with th e plain meaning of MCL 750.520f(1), as evidenced by its gra mmatical structure, which describes the mandatory minimum sentence requir ed under that provision as “ at least 5 years.” The Legislature could have created an absolute “mandatory minimum” sentence of

6 MCL 750.520f(1) (emphasis added).4 5 years, but it did not. 7 Instead, by using the phrase “a t least” to modify “5 years,” the Legislature created an indeterminat e “mandatory minimum” sentence for

recidivist sex offenders. Under the ma ndatory minimum sentence, 5 years is the starting point of the minimum sentence, not its upper terminus. Accordingly, a sentencing court must impose a sentence within the indeterminate mandatory minimum sentence of MCL 750.520f(1)— namely, any minimum sentence of 5 years or more—and that sentence “is not a departure” 8 from the legislative sentencing guidelines. The majority’s misinterpretation w ill not be limited to the statute now before us. In numerous statutes, some covering our most serious crimes, the Legislature has chosen to create an indeterminate , rather than an absolute, mandatory minimum sentence. 9 Under today’s decision, the majority reads out of

7 For example, MCL 750.227b(1) sets an absolute mandatory term of 2 years’ imprisonment for a first offens e of possessing a firearm during the commission of a felony. Various statutes similarly provide an absolute mandatory term of life imprisonment: MCL 333.7413 (1) (subsequent violations of certain serious controlled substance offenses); MCL 750.316(1) (firs t-degree murder); MCL 750.543f(2) (terrorism causi ng death); MCL 7 50.544 (treason).

8 MCL 769.34(2)(a).

9 See, e.g., MCL 333.7410 (2) (providing a sentence of “not less than 2 years or more than 3 times that authorized by [MCL 333.7401(2)(a)( iv )]” for delivery of a controlled substance within 1,000 feet of a school or library); MCL 333.7410(3) (providing a sentence of “not less than 2 years or mo re than twice that authorized by [MCL 333.7401(2)(a)( iv )]” for possessing with intent to deliver a controlled substance within 1,000 feet of a school or library); MCL 333.7413(3) (providing a sentence of “not less than 5 years nor more than twice that authorized under [MCL 333.7410(2)] or (3)” for a subsequent offense of delivering or5 possessing with intent to deliver a contro lled substance within 1,000 feet of a school or library); MCL 750. 112 (providing a sentence of “not less than 15 years nor more than 30 years” for committing burglary with explosives); MCL 750.520b(2)(b) (providing a sentence of “ life or any term of years, but not less than 25 years” for first-de gree CSC committed by an indi vidual 17 years of age or older against a victim under the age of 13) ; MCL 750.529 (providing a sentence of “life or for any term of years” but “n ot less than 2 years” for armed robbery involving “an aggravated assault or serious injury”); see also MCL 257.257(2) and (3) (providing sentences for subsequent o ffenses of altering or forging documents from the Secretary of State of “not less th an 2 years or more than 7 years” and “not less than 5 years or more than 15 years” respectively); MCL 257.329(2) and (3) (providing sentences for subsequent offenses of possessing or selling false certificates of insurance of “not less than 2 years or more than 7 years” and “not less than 5 years or more than 15 ye ars” respectively); MCL 257.625(7)(a)( i )(A) and ( ii )(A) (providing sentences for various dr iving-while-intoxicated offenses of “not less than 5 days or mo re than 1 year” and subseque nt offenses of “not less than 1 year or more than 5 years”); MC L 257.625k(7) and (9) (providing sentences of “not less than 5 years or more than 10 years” for a laboratory or manufacturer that falsely certifies an ignition interloc k device); MCL 257.625m(5)(a) (providing a sentence of “not less 1 year or more th an 5 years” for a subsequent offense of driving a commercial vehicle with a bodily alcohol content of 0.04 grams or more but less than 0.08 grams per specified volume of blood, breath, or urine); MCL 257.903(2) and (3) (providing sentences of “not less than 2 years or more than 7 years” and “not less than 5 years or more than 15 years” respectively for subsequent offenses of making false certif ications on an application for various licenses through the Secretary of State); MCL 333.13738(3) (pro viding a sentence of “not less than 5 years and not more than 20 years” for illegally disposing of toxic waste in a manner that constitutes “a n extreme indifference for human life”); MCL 750.161(1) (providing a sentence of “not less than 1 year and not more than 3 years” for deserting or abandoning one’s spouse or children); MCL 750.210a(b) (providing a sentence of “not less than 2 nor more than 5 years” for possessing or selling products containing “valerium” without a license or prescription); MCL 750.361 (providing a sentence of “not less than 1 year nor more than 2 years” for stealing “journal bearings” from a railr oad car); MCL 750.458 (providing a sentence of “not less than 2 years nor more than 20 years” for detaining a woman in a house of prostitution to eff ectuate repayment of a debt).6 our law books the indeterminate nature of these mandatory minimum sentences and replaces those sentences with absolute minimum terms that the Legislature did

not enact. The majority apparently eschews th e clear language of MCL 750.520f(1) because it concludes that the 10-year mi nimum sentence imposed here would be “contrary to a central purpose of the sent encing guidelines—gre ater uniformity in sentencing.” 10 This rationale will not scour when one considers that the obligation of the judiciary is to apply legislativ e policies according to the unambiguous words used by the Legislature in the stat utes enacted, not according to abstract policy considerations on ly judges can divine. 11 Whatever the broader policy of the

10 Ante at 7.

11 As the author of the ma jority opinion has stated: The first step in statutory interpre tation is to give effect to the intent of the Legislature. To do so, we examine first the specific language of the statute. If the language is clear and unambiguous, we assume that the Legislature in tended its plain meaning, and we will enforce the statute as written . This Court should reject an interpretation of a statute that spec ulates about legislative intent and requires us to add language into the statute. [ People v Carpenter , 464 Mich 223, 250; 627 NW2d 276 (2001) (K ELLY , J., dissenting) (citations omitted).] See also Omne Fin, Inc v Shacks, Inc , 460 Mich 305, 312; 596 NW2d 591 (1999) (K ELLY , J.) (“[W]e need not, and conseque ntly will not, speculate regarding legislative intent beyond the plain words expressed in the statute.”); Dorris v Detroit Osteopathic Hosp Corp , 460 Mich 26, 53; 5 94 NW2d 455 (1999) (K ELLY , J., concurring in part and dissenting in pa rt) (criticizing the ma jority for elevating the “purpose of the statute” over the “plain language of the statute”); Rogers v Detroit , 457 Mich 125, 140; 579 NW2d 840 (1998) (K ELLY , J.) (“Here, the statutory meaning is clear on its face. Theref ore, the role of the judiciary is not to7 legislative sentencing guidelines, the Legi slature directed that a minimum sentence

of “ at least 5 years” satisfies the particular st atute at issue here, MCL 750.520f(1), and that is the policy we must apply. 12

II. THE MAJORITY’S MISC ONSTRUCTION CREATES AN INCONSISTENCY Despite the obvious and clear langua ge of MCL 750.520f(1), the majority has inexplicably created its own alternativ e statute. The majority has similarly

deviated from the obvious and clear la nguage of MCL 769.34(2)(a) and created a new, but unexplained, statutory scheme for mandatory minimum sentences. The majority determines th at an absolute term of 5 years is the “mandatory

minimum” for a recidivist sex offende r under MCL 750.520 f(1). However, the majority also claims th at a sentencing court departs from the guide lines when it sentences a defendant to a 5-year mi nimum term if the lower limit of the

articulate its view of ‘polic y,’ but to apply the statut e in accord with its plain language.”), overruled by Robinson v Detroit , 462 Mich 439; 613 NW2d 307 (2000).

12 If the Legislature has a general goal of promoting “uniformity in sentencing” under the sentencing guidelines statute, it is still free to create exceptions to that goal, as I believe it ha s clearly done here by referring to another statute that provides a mandatory but i ndeterminate minimum sentencing range for particular crimes. If applying the plain language of the recidivist sex offender statute leads to anomalous results as contended by the majority, see ante at 11-13 & n 24, it is solely the province of the Legislature to remedy—assuming, contrary to the language it used, that the Legislature believed a sentence of at least 5 years was too high a minimum sentence for a serial sex offender.8 defendant’s guidelines range is ca lculated at more than 5 years. 13 This is entirely contrary to MCL 769.34(2 )(a), which expressly states that “[i]mposing a mandatory minimum sentence is not a departure under this section .” 14 Now the majority compels the sent encing court to justify as a departure a minimum sentence that is excepted from the statut ory sentencing guidelines in the first

instance. The problem with the ma jority’s analysis is this: MCL 769.34(2)(a) specifically provides that the guidelines are not controlling here; rather, the guidelines defer to another statute that includes a mandatory minimum sentence. Yet the majority insists on reverting to the guidelines despite the Legislature’s clear directive to the contrary and declines to provide any statutory support for this

decision. 15 Imposing a 10-year minimum sentence fo r a recidivist sex offender is not a departure from the legislative sentencing guidelines because it is a “mandatory

13 Ante at 12 n 25. For example, unde r the majority’s misconstruction of MCL 769.34(2)(a), if a defendant’s guidelin es range were calculated at 7 to 10 years, a sentencing court is precluded from imposing a sentence “in accordance with” the mandatory minimum sentence provided in MCL 750.520 f(1), without stating reasons for its sentencing “dep arture.” If, however, a defendant’s guidelines range were calculated at 2 to 4 years, the majority (correctly) asserts that a sentencing court’s imposition of a 5-year minimum sentence, pursuant to MCL 750.520f(1), is not a departure.

14 Emphasis added.

15 See ante at 12 n 25.9 minimum sentence” 16 of “at least 5 years” as provided in MCL 750.520f(1). Accordingly, I dissent and would instead affirm the judgment of the Court of Appeals. Robert P. Young, Jr. Maura D. Corrigan

16 MCL 769.34(2)(a).