Opinion
Docket No. 81507.
Decided July 16, 1985. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.
Catchick Dodge (by David A. Dodge), for defendant on appeal.
Defendant was charged, in a two-count information, with possession with intent to deliver of less than 50 grams of heroin and of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). (Circuit Court No. 83-33410-FY.) Subsequently, the prosecutor filed two additional charges, including one count of delivery of less than 50 grams of cocaine. (Circuit Court No. 83-35031-FH.) Defendant committed the latter offense during the pendency of the disposition of the first two charges. On August 29, 1984, defendant pled guilty to possession with intent to deliver heroin in case No. 83-33410-FY and to the cocaine delivery in case No. 83-35031-FH. In No. 83-35031-FH, sentencing was scheduled for October 9, 1984. In No. 83-33410-FY, sentencing was scheduled for October 12, before a different judge.
On October 9, the circuit judge sentenced defendant in No. 83-35031-FH to from 5 to 20 years imprisonment, the term to run consecutively, in the circuit judge's words, to the term "heretofore imposed" in case No. 83-33410-FY. However, no term had yet been imposed in No. 83-33410-FY. On October 12, the other judge sentenced defendant to from 3 to 20 years imprisonment in No. 83-33410-FY, and did not order that the term run consecutively to that imposed three days earlier in the other case.
We agree with defendant's assertion that the judge who pronounced sentence in case No. 83-35031-FH lacked authority to order that the term run consecutively to a sentence not yet imposed in the other case.
Under MCL 768.7b; MSA 28.1030(2):
"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.
"(b) The sentences imposed for conviction of the prior charged offense and a subsequent offense which is a major controlled substance offense shall run consecutively" (Emphasis added.)
Delivery of less than 50 grams of cocaine is not a "major controlled substance offense". MCL 761.2; MSA 28.843(12). Therefore, the paragraph making the imposition of consecutive sentences mandatory, MCL 768.7b(b), is not applicable. The decision whether to order consecutive sentences involves the discretion of the sentencing court. People v Gjidoda, 140 Mich. App. 294, 299; 364 N.W.2d 698 (1985); People v Hacker, 127 Mich. App. 796, 799; 339 N.W.2d 645 (1983); People v Williams, 89 Mich. App. 633, 636; 280 N.W.2d 617 (1979). The most significant factor affecting the court's exercise of discretion is the length of sentence in the other case, a factor not yet established when the trial court made the sentence consecutive in the present matter. There was not so much an abuse of discretion as a decision made without the benefit "of the basic operative facts upon which any such discretion might have validly been exercised". Stone v Stone, 349 Mich. 162, 174; 84 N.W.2d 338 (1957).
The people argue that defendant has no real complaint, because "[t]he effect of consecutive sentences is not to increase the maximum punishment prescribed for the second offense but merely [to postpone] the time at which the second sentence will commence". People v Bonner, 49 Mich. App. 153, 160; 211 N.W.2d 542 (1973). We cannot ignore the effect which a decision to impose a consecutive sentence has on the time defendant ultimately will spend in prison. This decision, like the decision as to the length of the term itself, "must be tailored to fit the particular circumstances of the case and the defendant". People v Coles, 417 Mich. 523, 537; 339 N.W.2d 440 (1983); People v McFarlin, 389 Mich. 557, 574; 208 N.W.2d 504 (1973). The judge is incapable of such a determination when he imposes a consecutive sentence without knowing the amount of time to which it will be consecutive.
The people urge that our holding is an unwarranted narrowing of the statute, based on the "fortuitous happenstance" that the sentence for the "subsequent offense", MCL 768.7b, was imposed first. We disagree. The judge who sentenced defendant second could have made the sentence consecutive, even though the sentence was imposed for the first felony. This Court so held in People v Kaake, 118 Mich. App. 71, 73; 324 N.W.2d 488 (1982): "The consecutive sentence may be imposed on the `prior' or the `subsequent' offense, whichever receives a sentence later in time."
In actuality, it is the people who advance a radical interpretation of the statute, one which would expose the offender twice to the risk of consecutive sentencing. This interpretation is revealed in all its broadness by the people's secondary argument that, if the judge lacked authority to impose a consecutive sentence until the other judge acted, then we should remand the matter to him for a fresh exercise of discretion, now that the other judge's decision is available for consideration.
We decline to do so. Under the statute, only the judge who presides at the second sentencing has the authority to exercise discretion in imposing a consecutive sentence. In this case, the first judge was without authority to do so and the second judge, who did have authority, chose not to exercise it. Like the panel which decided Kaake, supra, we believe that a single decision whether to impose consecutive sentences is enough to fulfill the purpose of the statute. Neither the people nor the defendant, for that matter, is entitled to reconsideration of this decision.
In No. 83-35031-FH, the portion of the sentence providing that the sentence shall be consecutive to that imposed in No. 83-33410-FY is hereby vacated. The two sentences are to run concurrently.