People v. Bonoite

• Decision Date: 22 February 1982
• Docket Number: Docket No. 52348
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carroll James BONOITE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 884

315 N.W.2d 884

112 Mich.App. 167

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carroll James BONOITE, Defendant-Appellant.

Docket No. 52348.

Court of Appeals of Michigan.

Submitted Feb. 19, 1981.

Decided Jan. 5, 1982.

Released for Publication Feb. 22, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Randy H. Smith, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People.

Gerald J. Supina, Portland, for defendant-appellant.

Before RILEY, P. J., and BASHARA and MacKENZIE, JJ.

MacKENZIE, Judge.

On July 22, 1979, defendant was charged with assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. An amended information stating the same charge was filed on March 17, 1980. After various delays, the case was set for trial on April 17, 1980. However, on April 14, 1980, defendant appeared in court for arraignment on a supplemental information charging him as an habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083, although no such supplemental information appears in the lower court file. It is undisputed that the prior felony convictions on which the habitual offender charge was based were obtained by the same prosecutor's office that prosecuted the instant case. During that appearance, defendant pled guilty to the original charge in return for the prosecutor's agreement to dismiss or refrain from filing the supplemental information. Defendant was sentenced to serve six and one-half to ten years in prison and now appeals by right.

Defendant argues that his conviction must be reversed as the product of an illusory plea bargain. In People v. Johnson, 86 Mich.App. 77, 79, 272 N.W.2d 200 (1978), the Court held that if defendant's plea was induced by a promise to forego habitual offender proceedings when no such proceeding would be warranted, the plea bargain was illusory. In Johnson, the record was unclear as to whether defendant had any felony convictions prior to the offense to which he pled guilty, and the case was accordingly remanded for an evidentiary hearing. Here defendant does not contend that he had no prior felony convictions. Instead, defendant contends that the prosecutor brought the habitual offender charge too late in view of People v. Fountain, 407 Mich. 96, 98-99, 282 N.W.2d 168 (1979):

"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v. Hatt, 384 Mich. 302, 181 N.W.2d 912 (1970); People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. M.C.L. § 769.13; M.S.A. § 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet'. People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976).

"Here the prosecutors must be presumed to have known of the defendants' prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety." (Emphasis added).

Recently, in People v. Ruff, 108 Mich.App. 716, 310 N.W.2d 852 (1981), a panel of this Court analyzed Hatt and Stratton, the cases relied upon in Fountain, and concluded that the "promptness" requirement of Fountain meant nothing more than that the prosecutor must file the habitual offender information before defendant's conviction of the last felony. The language emphasized above concerning simultaneous filing was dismissed as dicta in view of the Fountain Court's statement of the issue before it, at 407 Mich. 97, 282 N.W.2d 168:

"Is it permissible to enhance sentence under the habitual offenders act if the prosecutor has reliable information pertaining to a person's prior felony record before trial but does not charge the person as an habitual offender until after conviction is entered on the current felony charge?" (Footnote omitted).

Of course, even the dicta of our judicial superiors is entitled to considerable deference. In City of Detroit v. Michigan Public Utilities Comm., 288 Mich. 267, 286 N.W. 368 (1939), the Court explained that all that is necessary to render its decisions authoritative on any point decided is to show an application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case. Defendant would read the "simultaneous filing" language in Fountain to impose a requirement that the prosecutor proceed on a habitual charge at a substantially earlier stage than prior cases such as Hatt and Stratton required. The Fountain opinion contains nothing which indicates a reason for such a departure from prior law. An application of the judicial mind to the "simultaneous filing" language is thus not apparent and we therefore agree with the Ruff panel that the language may be disregarded as dicta.

The result we reach here is supported by a close reading of the Court's later decision in People v. Young, 410 Mich. 363, 301 N.W.2d 803 (1981), in which the Court passed on the question of Fountain's retroactivity. At 410 Mich. 366, 301 N.W.2d 803 the Court quoted what it called its holding in Fountain without quoting the "simultaneous filing" language. Moreover, the Court's holding on the retroactivity of Fountain at 410 Mich. 367-368, 301 N.W.2d 803 was as follows:

"The former practice of filing the habitual offender information only after conviction on the current felony was widespread. Retroactive application of the Fountain policy would have adverse effect on the administration of justice. The rule established in Fountain is procedural in nature, mandating how a prosecutor must proceed when charging a defendant as an...