Opinion
Docket No. 77-3280.
Decided November 28, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Appellate Division, for the people.
Rosenberg, Hartsook Spuhler, for defendant on appeal.
Before: ALLEN, P.J., and V.J. BRENNAN and M.F. CAVANAGH, JJ.
Defendant was charged with and pled guilty to the offense of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to four years imprisonment with credit for time served, and appeals by right. For the purposes of this opinion, we adopt the further statement of facts and errors involved set out in the dissent.
We concur with our brother ALLEN that the errors claimed in regard to the plea-taking procedure lack merit. The conviction should be affirmed.
We disagree that the sentence too should be affirmed.
By a 1902 amendment of the Constitution of 1850, the Legislature was given the authority to establish indeterminate sentences. They did so by 1903 PA 136. The subsequent amendments indicate no departure from the indeterminate nature of the sentencing scheme. Nowhere can there be found specific statutory authority for a determinate sentence and, failing this, the sentence rendered in this case must fall.
1905 PA 184; 1921 PA 259; 1927 PA 175.
The dissent makes a good argument for the literal interpretation of the language of MCL 769.8; MSA 28.1080, limiting its application to a person "convicted for the first time". However, such an interpretation then renders meaningless MCL 769.10; MSA 28.1082 (second felony conviction), MCL 769.11; MSA 28.1083 (third conviction), and MCL 769.12; MSA 28.1084 (fourth conviction). In each of those subsequent sections the Legislature very clearly provided what the punishment could be for somebody convicted of subsequent felonies. It is interesting to note that even those subsequent sections, although increasing the allowable maximum, all provide for indeterminate sentencing. In other words, for the second conviction (MCL 769.10; MSA 28.1082) it is provided, "may be placed on probation or sentenced to imprisonment for a term not more than 1-1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court".
Furthermore, even assuming arguendo that the dissent's reading of MCL 769.8; MSA 28.1080, is correct, GCR 1963, 785.8(3) requires the sentencing judge to "state the minimum and maximum sentence imposed by the court". The literal language of the rule established by the Supreme Court, which would take precedence over inconsistent legislation in matters of practice and procedure, Buscaino v Rhodes, 385 Mich. 474; 189 N.W.2d 202 (1971), People v Joker, 63 Mich. App. 421; 234 N.W.2d 550 (1975), clearly mandates an indeterminate sentence, without reference to number of previous convictions. At the very least, GCR 1963, 785.8(3) indicates the correct interpretation to be given the sentencing statute in issue.
The annotations are replete with citations which indicate that to charge someone as a second, third, or fourth offender a supplemental information must be filed and a trial had, if necessary, on that supplemental information. Upon conviction the specified penalty can be imposed. The dissent suggests that this can be done without any supplemental information and without any adjudication of any prior convictions. To do so, we are persuaded, would shortcut a legislative scheme designed to be implemented by the prosecutor. The Legislature has provided a relatively simple method for the prosecutor to reach a second, third, or fourth-time offender, and to increase his punishment. If the prosecutor elects not to so charge but instead simply charges as a first-time offender the only punishment authorized by the Legislature is an indeterminate sentence. The court cannot exceed this authority and the limitations specified in People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), apply.
See MCL 769.13; MSA 28.1085, In re Brazel, 293 Mich. 632; 292 N.W. 664 (1940), and People v Parker, 50 Mich. App. 537; 213 N.W.2d 576 (1973).
It is interesting to note that Tanner was 23 at the time he was sentenced for manslaughter, which was taken as an included offense of the crime charged, first-degree murder. Tanner had two prior convictions: attempted larceny from a building and unarmed robbery. Records and Briefs, Supreme Court, 4 December term 1971, Defendant-Appellant's Brief, 3 and Appendix, 4a.
We accordingly vacate the sentence heretofore imposed and remand to the trial court for resentencing pursuant to the Tanner opinion.
V.J. BRENNAN, J., concurred.
Defendant was charged with and pled guilty to the offense of larceny in a building, MCL 750.360; MSA 28.592. Defendant was sentenced to four years imprisonment with credit for time served. Defendant now appeals of right, claiming error in the taking of his plea and in the determinate nature of his sentence.
Two errors are alleged in regard to the plea-taking. Defendant contends (1) that the court failed to inform him of the elements of the offense, and (2) that the court failed to inform him that defense witnesses would be produced at court expense. Neither of these allegations amount to error, and they are certainly not reversible error. The court rule and case law are clear that the specific elements of an offense need not be stated or explained. GCR 1963, 785.7(1)(a); People v Clifton, 70 Mich. App. 65; 245 N.W.2d 175 (1976). Defendant herein was adequately apprised of the offense and the nature of the offense. In taking defendant's plea, the court complied with GCR 1963, 785.7. In particular, it complied with GCR 1963, 785.7(1)(g)(v), (vi), and (vii) which concern the right to confront witnesses. There is no requirement that a defendant be expressly informed that such witnesses will be provided at the court's expense. Moreover, the impact of the existing requirement leads to the inference that there is no burden on the defendant, financial or otherwise, to produce witnesses.
The more significant issue raised by defendant regards his sentencing. Defendant was sentenced to a four-year prison term. This was the maximum prison sentence permitted. MCL 750.503; MSA 28.771. No indeterminate sentence pursuant to MCL 769.8; MSA 28.1080 was given. Defendant contends that his sentence and any other sentence which is not an indeterminate sentence violates the indeterminate sentencing policies of this state. I disagree.
Defendant's argument is twofold. First, indeterminate sentencing requires a sentence with a minimum at least one-third less than the maximum. Second, in Michigan, indeterminate sentencing is required in all cases. Defendant relies primarily on People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), and the following language from that case:
"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act." 387 Mich at 690.
As defendant contends, Tanner established the parameters for indeterminate sentences. However, Tanner did not deal with the question of when an indeterminate sentence was proper or necessary. There was no question that the defendant in Tanner received an indeterminate sentence. Neither the majority nor the dissent in Tanner discussed when an indeterminate sentence is required, and the case must be read in this context. When the language quoted above is examined in its proper context, it is apparent that the parameters established are relevant only when dealing with an indeterminate sentence.
An indeterminate sentence is required by statute, MCL 769.8; MSA 28.1080, for a person who is "convicted for the first time". This language is found in the first clause of the statute. It was expressly added to the statute by the Legislature in 1905, and it is still retained. This unambiguous legislative statement cannot be ignored. The Legislature intended that the indeterminate sentencing statute must be applied only to first offenders. The Legislature established a scheme permitting a determinate sentence for other than first offenders. In the instant case, defendant had four prior felony convictions. Hence, defendant was not a first offender and the sentencing judge did not have to apply indeterminate sentencing. The four-year sentence defendant received was within the range permitted and there was no abuse of discretion in giving the sentence in this case.
1905 PA 184.
Defendant calls attention to a pair of recent cases representing a split of authority in this Court. People v Redwine, 73 Mich. App. 83; 250 N.W.2d 550 (1976), held that a sentence of 23 to 24 months for a person who was not a first offender violated the indeterminate sentencing statute in light of the parameters set forth in People v Tanner, supra. People v Banks, 73 Mich. App. 492; 252 N.W.2d 501 (1977), while recognizing People v Tanner, supra, held that a sentence of 3 to 4 years to a defendant with prior felony convictions was not a violation of the indeterminate sentencing statute because that statute did not apply to other than first offenders. These cases dealt with the limits placed on a sentencing judge when giving an indeterminate sentence to a person other than a first offender. This is not the situation before us, and, therefore, I decline to discuss the issue of Redwine and Banks. The instant case deals with a determinate sentence and, as has been discussed above, a judge's discretion to give such a sentence to subsequent offenders has not been precluded by the indeterminate sentencing statute.
I would affirm.