Summary
concluding that a person on "pre-parole" status remained subject to the consecutive sentencing statute
Summary of this case from People v. ParkerOpinion
Docket No. 51934.
Decided July 23, 1982.
Nora J. Pasman, Assistant State Appellate Defender, and John Nussbaumer, for defendant on appeal.
Before: WAHLS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
Defendant pled guilty in Wayne County Circuit Court to a reduced charge of attempted felonious assault, MCL 750.82; MSA 28.277, MCL 750.92; MSA 28.287. He was sentenced to serve 16 months to 24 months in prison. We note that at the time the defendant was arrested on the charge which resulted in this conviction and sentence in the circuit court, the defendant had already been charged and pled guilty in Detroit Recorder's Court to a different offense involving a different incident which occurred on the same day as the incident which resulted in this charge. We also note that at the time these two offenses were committed, the defendant was on "extended furlough" pre-parole status for a 1975 conviction.
At the sentencing in this case, the trial court stated that the defendant was not entitled to receive any credit for the time he served in the Wayne County jail since he received credit for that time when sentenced in the Detroit Recorder's Court case. The sentences for the circuit court conviction and the Recorder's Court conviction would run concurrently, but would also run consecutively to defendant's sentence for the 1975 conviction.
On appeal, the defendant argued that he was entitled to receive credit for the 70 days he spent in custody while this case was pending. Defendant also argued that he was entitled to serve his sentence concurrently with the sentence for which he was on extended furlough.
By an order dated October 16, 1981, we granted defendant's motion to remand to the trial court to determine whether defendant is entitled to concurrent or consecutive sentencing. The trial court determined that defendant's sentences should run consecutively, and also gave defendant 70 days credit for the time he spent in jail while the case was pending.
The sole question for us to determine now is whether the trial court erred in ordering defendant's sentence to be served consecutively to the sentence for the 1975 conviction. We find no error.
Defendant was on "extended furlough" pre-parole status at the time that he committed the offense. The Department of Corrections considers this an inmate status. MCL 768.7a; MSA 28.1030(1) provides that any person who is "incarcerated" and commits a crime shall serve consecutive sentences. MCL 750.193; MSA 28.390 defines prison liberally. MCL 768.7a; MSA 28.1030(1) is to be read in pari materia with MCL 750.193; MSA 28.390, defining prison. See People v Shirley Johnson, 96 Mich. App. 84, 86; 292 N.W.2d 489 (1980). Prison includes the grounds under control of any person authorized by the Department of Corrections to have a prison inmate under care, custody, or supervision either in an institution or outside an institution, whether for the purpose of work, medical care, or any other reason.
This Court has held that a halfway house and a community corrections center are places where a defendant is incarcerated within the meaning of MCL 768.7a; MSA 28.1030(1). If a crime is committed while the defendant is in one of these places, the consecutive sentencing statute is applicable. People v Mayes, 95 Mich. App. 188; 290 N.W.2d 119 (1980), People v Shirley Johnson, 96 Mich. App. 84; 292 N.W.2d 489 (1980). Also, see People v Hegwood, 109 Mich. App. 438, 442; 311 N.W.2d 383 (1981), where the Court held, relying on MCL 768.7a; MSA 28.1030(1), that a person in a transitional corrections program is "incarcerated" for purposes of the 180-day rule. The fact that a person is not confined is not a controlling factor if the person continues to be under the control of the Department of Corrections.
Since defendant was not on "parole" status, but "pre-parole" status at the time he committed the offense, he was subject to the consecutive sentencing statute.
Affirmed.