Opinion
Docket No. 84692.
Decided November 17, 1986. Leave to appeal denied, 428 Mich. ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for plaintiff.
Gerald K. Evelyn, for Jerry D. Prysock.
The issue in this case is whether a prosecutor is entitled to appellate review of a sentencing court's decision regarding the length and nature of a criminal defendant's sentence. We hold generally that a prosecutor does not have the authority to challenge a sentencing court's exercise of discretion in sentencing.
In this case, Jerry D. Prysock pled nolo contendere to a charge of manslaughter, MCL 750.321; MSA 28.553. The Recorder's Court judge who presided over the case sentenced Prysock to five years' probation with the first 140 days to be served in jail. Credit was given for 139 days already served. The court also ordered Prysock to pay funeral expenses for the deceased, to pay $750 in court costs, to enroll in an alcohol treatment program, and to report to the probation department on a monthly basis.
On April 30, 1985, the prosecution filed a complaint for superintending control in this Court. We thereafter ordered the parties to proceed to a full hearing on the merits in the same manner as in an appeal as of right, but we also ordered the parties to brief the law regarding appellate review of criminal sentences when a prosecutor seeks such review.
In People v. Coles, 417 Mich. 523; 339 N.W.2d 440 (1983), the Supreme Court expanded the scope of appellate review of sentencing to include consideration of the trial court's exercise of discretion in sentencing. However, the major thrust of Coles was to grant defendants a right to appeal the trial court's exercise of discretion in sentencing. The Supreme Court in Coles explicitly stated that it took no position at that time regarding the prosecutor's right to appeal the length of a defendant's sentence.
Subsequently, in People v. Cooke, 419 Mich. 420; 355 N.W.2d 88 (1984), the Supreme Court held that a prosecutor has no right to appeal outside the express provisions of MCL 770.12; MSA 28.1109, which contains no express authorization for prosecutorial appeals of sentences.
The question remains as to whether a sentencing court's exercise of discretion in sentencing may be reviewed pursuant to a prosecutor's complaint for an order of superintending control. Recently, in People v. Rehkopf, 422 Mich. 198; 370 N.W.2d 296 (1985), while the majority did not address the issue, Justice BOYLE, in her dissenting opinion, discussed the issue of a prosecutor's ability to seek appellate review of sentences. Justice BOYLE expressed her opinion that in certain circumstances review of sentences is permitted by use of an order of superintending control. Justice BOYLE explained:
This Court has held that the superintending control order is an appropriate method for reviewing a claim that an inferior court has acted without authority, or has failed to act where it has a clear legal duty to do so. People v. Flint Municipal Judge, 383 Mich. 429; 175 N.W.2d 750 (1970). Moreover, an improperly denominated pleading may be treated as a complaint for an order of superintending control in appropriate circumstances. See Falk v. State Bar of Michigan, 411 Mich. 63, 86; 305 N.W.2d 201 (1981); People v. Wilkins, 121 Mich. App. 813, 817; 329 N.W.2d 500 (1982). [ 422 Mich. 226-227.]
Justice BOYLE did not suggest that an order of superintending control would be appropriate in situations other than where the trial court acted without authority or failed to act where it had a clear legal duty to do so.
In addition to Justice BOYLE'S dissent in Rehkopf, this Court had previously indicated that a superintending control order is an appropriate method for reviewing a claim that a trial court acted without authority or failed to act where it had a clear legal duty to do so in connection with sentencing. See People v. Larkins, 142 Mich. App. 679; 369 N.W.2d 882 (1985); People v. Wilkins, 121 Mich. App. 813; 329 N.W.2d 500 (1982). In Wilkins, supra, the trial court sentenced the defendant under the wrong statute. This Court held that a superintending control order was an appropriate method of review because the lower court had a clear legal duty to sentence the defendant under the proper statute. In Larkins, supra, the three defendants were each given probation plus ninety days in jail for armed robbery. This Court held that the sentencing was void because armed robbery is not a probationable offense. Neither case involved a prosecutor's challenge to the court's exercise of discretion in sentencing. Rather, both cases involved situations where the sentencing court acted contrary to statute and imposed an invalid sentence.
The present case simply involves a challenge to the trial court's exercise of discretion in sentencing. We believe that a superintending control order is inappropriate under such circumstances. The facts of this case do not indicate that the sentencing court acted without authority or failed to act where it had a clear legal duty to do so. We refuse to expand the use of our superintending control power to review an exercise of discretion.
We suggest that prosecutors exhaust the available alternatives at the trial court level. We note that the prosecutor did not object or otherwise indicate his disapproval to the court after the court determined sentence. Nor did the prosecutor request the court to provide a more elaborate statement of its reasons for the sentence imposed. The argument in support of a more lengthy sentence should be presented to the sentencing court.
In conclusion, we find that a superintending control order is not an appropriate method for reviewing the claim that the sentencing court abused its sentencing discretion in this case.