Opinion
Docket No. 52240.
Decided December 15, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
Mark C. Wawro, for defendant on appeal.
May a trial judge raise the minimum sentence first imposed upon defendant when the maximum sentence first imposed upon defendant is increased to conform to the maximum sentence set forth in the applicable statute? This question of first impression arises upon the following facts.
Following a two-day trial, defendant was found guilty by jury of larceny in a building, MCL 750.360; MSA 28.592. On April 18, 1980, defendant was sentenced to prison for a minimum term of 16 months and a maximum term of 24 months. Subsequently, the trial judge realized that the 24-month maximum sentence was in violation of MCL 750.503; MSA 28.771, which provides for a maximum sentence of 48 months. On April 24, 1980, after defendant had begun serving her sentence, the trial judge, in an effort to correct the error, changed the sentence imposed to a maximum of 48 months and a minimum of 32 months. Defendant appeals of right, raising two issues.
Defendant first argues that since she had commenced serving her sentence before the change was made, the trial court was prohibited from increasing the sentence. A valid sentence once imposed cannot be changed by the trial court after a defendant has begun serving time. People v Meservey, 76 Mich. 223; 42 N.W. 1133 (1889), People v Chivas, 322 Mich. 384, 395-396; 34 N.W.2d 22 (1948), People v John Williams, 65 Mich. App. 531, 533-534; 237 N.W.2d 545 (1975), Anno: Power of trial court to change sentence after commitment or payment of fine, 168 ALR 706. However, it is entirely proper for a trial judge who has erroneously imposed a lesser maximum sentence than required by statute to correct the error by increasing the sentence to the statutory maximum. In re Pardee, 327 Mich. 13; 41 N.W.2d 466 (1950), cert den 339 U.S. 961 (1950), People v Coffman, 45 Mich. App. 480, 490; 206 N.W.2d 795 (1973). The problem in the instant case is that while the maximum sentence imposed was invalid, the minimum sentence of 16 months was not facially invalid. It is perfectly permissible to impose a minimum sentence which is less than two-thirds of the maximum sentence. Indeed, this Court has upheld sentences of one year in the county jail for the crime of larceny in a building. People v Haymond, 74 Mich. App. 632; 255 N.W.2d 3 (1977), People v Shirley Johnson, 74 Mich. App. 652; 255 N.W.2d 4 (1977).
After this opinion was written, but before it was released, the Supreme Court handed down its decision in People v Barfield, 411 Mich. 700; 311 N.W.2d 724 (1981). The Court in that opinion applied the general rule, which we do not question, that valid sentences, once imposed, cannot be altered by the trial court. Here, where the initial sentence was invalid, a different question is presented.
Defendant concedes that the trial court had authority to change the invalid maximum sentence but argues the court had no authority to change the valid minimum sentence. As noted earlier, the issue raised is of apparent first impression. The legality of increasing defendant's minimum sentence depends upon whether the sentence first imposed in this case is viewed as an integrated whole or is viewed as two separate parts. If the sentence is viewed as consisting of two separate parts — a maximum and a minimum — then an illegal maximum would not render an otherwise legal minimum invalid. Obviously, defendant interprets the sentence as two separate parts. We are not persuaded.
It clearly appears to us that in the instant case the judge applied the rule of People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), in setting the minimum sentence. The Tanner rule states that the greatest minimum sentence a defendant can receive is two-thirds of the statutory maximum period. When the trial judge thought 24 months was the maximum, he set the minimum at two-thirds, so the minimum sentence was 16 months. When he learned that 48 months was the maximum, the Tanner rule was applied and the minimum sentence became 32 months. The minimum sentence was not only closely integrated to the maximum sentence, it was actually a function of the maximum sentence. There is no evidence in the record to support the position that the judge used his discretion in initially setting the minimum sentence at 16 months. Sixteen months was chosen because the judge applied the Tanner rule to an invalid maximum sentence.
We do not intend to go so far as to hold that every sentence first imposed is to be viewed as an integrated sentence thus allowing changes in both the minimum and maximum. There well may be instances where, in imposing sentence, the trial court considered the maximum and minimum sentences separately. We do hold, however, that on the facts before us, the 16-month minimum sentence clearly was so closely related to the incorrect maximum sentence that the trial court was not precluded from changing the minimum sentence when it changed the maximum sentence.
For example, when a trial court violates Tanner, supra, by imposing a minimum sentence greater than two-thirds of the maximum, our Court has not held that the entire sentence is invalid, thus requiring the trial court to impose a new sentence. Instead, our Court has merely reduced the minimum sentence to conform with Tanner. People v Reginald Harris, 80 Mich. App. 228, 233; 263 N.W.2d 40 (1977).
Our holding that a trial court may change the minimum sentence when it corrects the maximum sentence is supported by the Supreme Court's decision in In re Pardee, supra. In that case, defendant pled guilty and was sentenced to 10 years to 20 years in prison. After defendant had served two months of the sentence, the judge discovered that, because the defendant also had been charged as an habitual offender, the correct maximum sentence should have been 28 years. He then changed the maximum sentence to 28 years and the minimum sentence to 14 years. Defendant appealed, contending that the trial court could not increase the maximum term. In an opinion in which, though focusing on the trial court's ability to increase the maximum, the Supreme Court sustained both the corrected maximum and minimum term, the Court stated:
"Under the authority hereinbefore mentioned and by virtue of the statutes it became the duty of the trial court to sentence petitioner to a term of 14 to 28 years. It was not error to correct that which should have been done, even though petitioner was absent at the time of correction." Pardee, supra, 17-18.
Defendant raises a second issue. After the jury had deliberated for a while, the jurors requested to hear the testimony of Sharon Smith, who had testified that she saw defendant's hand in the victim's purse. The jury wanted to know where Smith was located in the lounge when she observed defendant's hand in the purse. The trial judge obliged the jury request by asking the court reporter to reread the witness's testimony as to the location she was at when she observed the incident. A portion of her testimony was then reread to the jury. No objection was raised by defense counsel nor did counsel request that the witness's testimony on cross-examination be read.
On appeal, defendant contends that, because there was testimony on both direct and cross-examination as to Smith's location, any consideration of the direct without the cross-examination testimony was prejudicial to defendant. A judge has discretion in determining whether testimony will be reread upon jury request and to what extent the testimony will be reread. People v Howe, 392 Mich. 670, 675; 221 N.W.2d 350 (1974). A trial court is not obliged to order reread a witness's entire testimony. Whitney v Day, 100 Mich. App. 707, 712; 300 N.W.2d 380 (1980). Where the testimony on direct and cross-examination is not in direct conflict, a trial judge does not abuse his discretion in refusing to reread the cross-examination testimony. People v Griffen, 36 Mich. App. 368, 372; 194 N.W.2d 104 (1971). Examination of the transcript discloses no conflict in the testimony. Accordingly, we find no abuse of the trial court's discretion.
Affirmed.
J.J. KELLEY, J., concurred.
I respectfully dissent. It is well settled that once a valid sentence has been set, it cannot be changed by the trial court. People v Meservey, 76 Mich. 223, 226; 42 N.W. 1133 (1889), People v Johnson, 60 Mich. App. 371, 373; 230 N.W.2d 438 (1975). An exception to this rule exists where the sentencing court errs by sentencing defendant to a maximum term less than that required by the sentencing statute. In re Pardee, 327 Mich. 13, 17-18; 41 N.W.2d 466 (1950), cert den 339 U.S. 961 (1950), In re Duff, 141 Mich. 623, 625; 105 N.W. 138 (1905). The reason for this exception is that the sentencing court does not have any discretion in setting the maximum sentence. Pardee, supra, 17-18, Duff, supra, 624. The sentencing judge is required to sentence defendant to the maximum sentence established by statute. Pardee, supra, 17-18, Duff, supra, 625.
However, the converse is not true when sentencing defendant to a minimum sentence. Fixing a minimum sentence is left to the sentencing court's discretion so long as the sentence complies with MCL 769.8; MSA 28.1080 and the rule established in People v Tanner, 387 Mich. 683, 690; 199 N.W.2d 202 (1972). People v Means, 49 Mich. App. 570, 573; 212 N.W.2d 288 (1973). A one-year sentence for the crime of larceny in a building is valid. People v Haymond, 74 Mich. App. 632, 633; 255 N.W.2d 3 (1977). Once a valid minimum sentence is imposed, I do not feel that the sentencing judge can change the sentence just because an incorrect maximum sentence was given. As a practical matter, a maximum sentence means little; the minimum is the vital sentence.
I do not find the majority's reliance on Pardee, supra, persuasive. In Pardee, defendant pled guilty to uttering and publishing a forged check with the intent to defraud, MCL 750.249; MSA 28.446, and was sentenced as a third-time felony offender under MCL 769.11; MSA 28.1083. He was sentenced to 10 to 20 years imprisonment. Later, the trial court was required to resentence the defendant because the sentence did not meet the requirements of MCL 769.11; MSA 28.1083. Under the statute as it was written at the time, the trial judge was required to sentence the defendant to a term not less than the longest term nor more than twice the longest term prescribed by law for a first conviction of such offense. Pursuant to the statute, the trial judge was required to change both the minimum and maximum sentence given to defendant. The trial judge in Pardee did not have any discretion to set a lower minimum sentence as he did in this case.
The trial judge gave defendant a valid minimum sentence during the first sentencing procedure. While he was required to change the maximum sentence, he was not forced to change the minimum. Because the minimum sentence was valid, I would reinstate the defendant's original minimum sentence.