People v. White

• Decision Date: 21 July 1995
• Docket Number: Docket No. 174375
• Citation: 536 N.W.2d 876,212 Mich.App. 298
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Edward WHITE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 876

536 N.W.2d 876

212 Mich.App. 298

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Edward WHITE, Defendant-Appellant.

Docket No. 174375.

Court of Appeals of Michigan.

Submitted May 9, 1995, at Detroit.

Decided July 21, 1995, at 9:20 a.m.

Released for Publication Sept. 15, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training and Morris R. Kent, Assistant Prosecuting Attorney, for the People.

Christopher J. Callahan, Ann Arbor, for the defendant on appeal.

Before MARKEY, P.J., and MacKENZIE and STARK, ^* JJ.

MARKEY, Presiding Judge.

Pursuant to a plea bargain, defendant pleaded guilty in January 1994 of the felony of attempted aggravated stalking, M.C.L. § 750.411i; M.S.A. § 28.643(9), and of being a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. Defendant was sentenced to three years' probation, with the first year to be served in jail. Defendant had previously pleaded guilty, in September 1993, of the misdemeanor of stalking the same victim, a violation of Grand Blanc Township Ordinance 92-01, § I, which apparently mirrors M.C.L. § 750.411h; M.S.A. § 28.643(8). Defendant challenged his felony conviction in the trial court on the bases that it violated double jeopardy principles, the stalking law was unconstitutional, and the $3,000 restitution that the court ordered defendant to pay was unsupported by documentary evidence. The trial court denied these challenges. Defendant appeals as of right. We affirm with respect to the double jeopardy and constitutionality issues, but we vacate the restitution order and remand for an evidentiary hearing to determine the appropriate amount of restitution, pursuant to M.C.L. § 780.767; M.S.A. § 28.1287(767) of the Crime Victim's Rights Act.

This case involves a near-tragic romantic relationship. Defendant and his victim began dating in July 1992 and stopped in August 1992 when defendant became violent with the victim. The two started seeing each other again in September and October 1992, but, after defendant pulled a knife on the victim and her twenty-year-old son, her stepson, and their friend on November 1, 1992, the relationship again ended. Defendant then began calling the victim approximately ten times a day. He threatened her and her children. She told him to leave them alone. Defendant also told her that he knew who was coming and going from her house and that she would find him standing over her when she woke up one morning. She then moved into her father's home. The calls stopped until the end of January 1993, when defendant began calling her one hundred times or more a week at home and at work. The victim lost her job in early December 1992 because of defendant's repeated calls to her and his appearance at her place of work. Apparently, because of defendant, the victim's co-workers were afraid to be at work with her. When the victim obtained a new job in January 1993 working the night shift caring for developmentally disabled adults, defendant continued to call the victim at work. Sometimes he phoned forty or fifty times each night, tying up all the telephone lines and threatening her, her children, and her father.

In May 1993, defendant's physical threats against the victim and her family were unceasing, despite her repeated requests that defendant leave her alone and stop calling her. She changed her telephone number, but he obtained her new number within a week. On June 9, 1993, the victim filed a stalking complaint against defendant with the Flint Police Department based upon defendant's repeated calls to her in May and June 1993 during which he threatened at least ten times to kill her and her children. After filing the complaint, the victim began keeping a log and the telephone company traced the telephone calls coming to her father's home. During an eleven-day period in June, the telephone company traced sixty-seven calls from defendant's home to the victim's father's home.

Defendant continued to call the victim even after he was served with a June 24, 1993, temporary restraining order that forbade him from assaulting, beating, molesting, or wounding the victim. Approximately seventy-five- percent of the calls resulted in defendant's speaking to the victim. He asked her to meet with him so they could work things out. If she met with him, the calls stopped for a day or two, but soon they began all over again. For the remainder of the calls, defendant would just hang up or leave his telephone off the hook so the victim could not make telephone calls from her home or her workplace. She again changed her telephone number in June 1993, but defendant eventually learned her new number and continued calling her.

On July 17, 1993, defendant called the victim at her workplace in Grand Blanc approximately ten times and again threatened to kill her and her children. She reported this episode to the Grand Blanc Police Department. The calls continued into the fall. On one occasion, defendant jumped on the victim's vehicle in an attempt to take her keys. Later, he stopped by her house with alcohol on his breath to ask the victim for a ride.

Finally, a warrant for defendant's arrest was issued on August 6, 1993; the warrant alleged that defendant had committed the felony of aggravated stalking of the victim, M.C.L. § 750.411i; M.S.A. § 28.643(9), and was based on a complaint issued on June 9, 1993. ¹ A supplemental information subsequently was filed alleging defendant's habitual offender status. On August 17, 1993, the Township of Grand Blanc sought a warrant against defendant for the misdemeanor of unlawfully stalking, pursuing, or terrorizing the victim by calling her place of employment on July 17, 1993, at least ten times and threatening to kill her, her children, and her father, in violation of township ordinance 92-01, § I. ²

Defendant subsequently pleaded guilty of the misdemeanor stalking charge in the 67th District Court in Genesee County and was sentenced to ninety days in jail. Defendant initially pleaded not guilty, however, with regard to the felony stalking charge and argued that double jeopardy principles precluded the felony prosecution because both stalking charges arose out of the same continuous course of conduct. The trial court denied this challenge and, as part of a plea agreement, defendant eventually pleaded guilty of the felonies of attempted aggravated stalking and of being a third-offense habitual offender. The trial court sentenced defendant to three years of probation with the first year to be served in jail on work release and ordered defendant to pay the victim $3,000 restitution.

After sentencing, defendant again renewed his double jeopardy challenge, argued to the court that the stalking law was unconstitutionally vague, and contested the restitution award. The court again denied these challenges. On appeal, defendant raises these same issues. We affirm the convictions and sentence but vacate with regard to the order of restitution and remand for a hearing to establish the appropriate amount of restitution, pursuant to M.C.L. § 780.767; M.S.A. § 28.1287(767).

I

We review de novo questions of law including double jeopardy issues and the constitutionality of statutes. See People v. Mezy, 208 Mich.App. 545, 551, 528 N.W.2d 783 (1995); In re Rupert, 205 Mich.App. 474, 479, 517 N.W.2d 794 (1994). Despite pleading guilty, defendant did not waive his right to raise the double jeopardy and constitutionality claims presented to this Court. People v. New, 427 Mich. 482, 492, 398 N.W.2d 358 (1986). With respect to defendant's double jeopardy challenge, defendant asserts that the misdemeanor stalking conviction precludes a conviction on the felony stalking charge because the former is a lesser included offense of the latter, both arise out of the same transaction, and the court erred in applying the "same elements" test in denying defendant's double jeopardy challenge. While we agree that the "same elements" test is inappropriate for determining questions of double jeopardy, we find defendant's double jeopardy challenge to be without merit.

The double jeopardy provision of the United States Constitution, U.S. Const., Am. V, and its counterpart in the Michigan Constitution, Const. 1963, art. 1, § 15, protect citizens from suffering multiple punishments and successive prosecutions for the same offense. People v. Harding, 443 Mich. 693, 699, 506 N.W.2d 482 (1993). Defendant's double jeopardy challenge involves the successive prosecutions strand of the Double Jeopardy Clause. See, generally, People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). The challenge is misplaced, however, because he was not convicted twice for the "same offense."

In People v. White, 390 Mich. 245, 254, 258-259, 212 N.W.2d 222 (1973), our Supreme Court adopted the "same transaction" test for determining whether two offenses are materially indistinguishable so as to prevent successive prosecutions. ³ The same transaction test requires that prosecutors join at one trial all the charges against a defendant arising out of a single criminal act, occurrence, episode, or transaction. Id., citing Justice Brennan's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 453-454, 90 S.Ct. 1189, 1199-1200, 25 L.Ed.2d 469 (1970). Because defendant's separate convictions of misdemeanor stalking, a violation of a township ordinance, and felony stalking arose out of two distinct occurrences or episodes, we find that defendant's subsequent felony stalking conviction did not violate double jeopardy principles. Compare White, supra.

Specifically, the August 6, 1993, felony stalking warrant specified that on June 9, 1993, defendant repeatedly or continuously harassed the victim in violation of a restraining order and made a credible threat to kill her or inflict physical injury upon her, in violation of M.C.L....