People v. Chambers

• Decision Date: 29 March 1988
• Docket Number: Docket Nos. 78504,78734,No. 6,6
• Citation: 430 Mich. 217,421 N.W.2d 903
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dwight CHAMBERS, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 903

421 N.W.2d 903

430 Mich. 217

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dwight CHAMBERS, Defendant-Appellee.

Docket Nos. 78504, 78734.

Calendar No. 6.

Supreme Court of Michigan.

Argued Nov. 4, 1987.

Decided March 29, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Grand Rapids, for plaintiff-appellant.

James R. Rinck, Grand Rapids, for defendant-appellee.

ARCHER, Justice.

M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2) of the Michigan Code of Criminal Procedure authorizes consecutive sentencing where a defendant commits a felony while free on bond for a prior felony charge. ¹ This Court granted plaintiff leave to appeal to determine whether the code's qualified grant of consecutive sentencing authority extends to the trial court first in time to render sentence. We hold that M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2) accords the prerogative of consecutive sentencing solely to the court last in time to impose sentence. We affirm the Court of Appeals finding that the first in time sentencing court lacked discretionary consecutive sentencing authority. However, we vacate defendant's sentences for both felony convictions and remand to the circuit court for resentencing in accord with this Court's opinion.

Factual and Procedural Background

On May 23, 1984, defendant Dwight Chambers was charged with breaking and entering with intent to commit larceny. M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Defendant appeared before Kent Circuit Court Judge Robert A. Benson and was released on personal recognizance bond on June 16, 1984. While free on bond, defendant was charged with larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. Defendant was arraigned before Kent Circuit Court Judge Roman J. Snow and subsequently detained.

On September 26, 1984, defendant pled guilty of both felonies in exchange for the dismissal of charges unrelated to this appeal. On October 17, 1984, Judge Benson sentenced defendant for the breaking and entering conviction, to a term of two to ten years to run consecutively to whatever term Judge Snow had yet to impose for the larceny conviction. ² At the sentencing hearing's close, Judge Benson concluded:

"Plus, I am not [sic] starting to get tougher on these people getting out and committing crimes on bond. I am very easy to let people out on bond; the jails are crowded. When people are out on bond and committing offenses, I think we ought to get word out on the streets that they are going to do there [sic] time consecutively.

"It is, therefore, the sentence of the Court, Mr. Chambers, that you be committed to the Michigan Department of Corrections to serve a period of time of not less than two nor more than ten years, this sentence to run consecutive to any sentence Judge Snow may give you in Case No. 35567. This will run consecutive to the sentence that Judge Snow may give you."

Judge Snow sentenced defendant the following day for the larceny conviction. At the hearing's outset, defense counsel informed Judge Snow of Chambers' prior imposed sentence and contested Judge Benson's authority to impose a term running consecutively from a then nonexistent sentence:

"I would care to inform the Court that yesterday Mr. Chambers was sentenced by Judge Benson in case number 35210-FH to a term of 2 to 10, as I recall, a consecutive sentence to this one. I do feel, however, that Judge Benson--I talked with him on that--I don't believe he has the authority to sentence on a consecutive nature; rather that's your discretion. I felt that I should mention that for your information because I do not feel Judge Benson can bind you in your discretion.... I haven't had a chance to get back to him. But I would ask the Court in this case, understanding these circumstances, not to impose a consecutive sentence." (Emphasis added.)

Judge Snow subsequently sentenced defendant to a term of two to four years without comment on Judge Benson's alleged infringement of his sentencing discretion.

On November 30, 1984, Judge Benson denied defendant's postsentencing motion to void the consecutive sentence imposed at the October 17 hearing. Defendant appealed in the Court of Appeals. A unanimous Court of Appeals panel held, on the basis of its opinion in People v. Rondon, 144 Mich.App. 410, 375 N.W.2d 761 (1985), rev'd. 424 Mich. 864, 380 N.W.2d 761 (1985), that M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2) did not grant the first in time sentencing court consecutive sentencing authority. ³ The Court vacated the portion of Judge Benson's sentence requiring it to run consecutively, affirmed the sentence imposed by Judge Snow, and ordered that both terms run concurrently. ⁴ We granted plaintiff leave to appeal, 428 Mich. 888, 403 N.W.2d 808 (1987).

I

Our task is one of statutory construction. In White v. Ann Arbor, 406 Mich. 554, 562, 281 N.W.2d 283 (1979), we succinctly defined our role with regard to legislative interpretation:

"The primary and fundamental rule of constitutional or statutory construction is that the Court's duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute."

Guided by these canons of statutory construction and the Legislature's express mandate that provisions under the Code of Criminal Procedure be deemed remedial and be liberally construed to effectuate the intents and purposes of the act, M.C.L. Sec. 760.2; M.S.A. Sec. 28.842, we turn first to the historical and legislative development of consecutive sentencing in Michigan.

It is well settled in Michigan that in the absence of statutory authority the imposition of consecutive sentences is forbidden. See In re Bloom, 53 Mich. 597, 19 N.W. 200 (1884); In re Allison, 322 Mich. 491, 33 N.W.2d 917 (1948); In re Carey, 372 Mich. 378, 126 N.W.2d 727 (1964). This Court, in In re Lamphere, 61 Mich. 105, 108-110, 27 N.W. 882 (1886), attributed Michigan's policy of concurrent sentencing to the absence of consecutive sentencing authority at English common law: ⁵

"The relations of this commonwealth to the common law are not altogether conformed to the holdings of some other states. In many of the states, statutes of parliament passed before or during the early days of the American colonies, as well as old colonial statutes and usages, have been recognized as part of the local common law, and have been construed and applied by the courts. But Michigan was never a common-law colony, and while we have recognized the common law as adopted into our jurisprudence, it is the English common law, unaffected by statute.

"In 1810 an act was passed putting an end to all the written law of England, France, Canada, and the Northwest and Indiana territories, as well as the French and Canadian customs, leaving no statute or code law in force except that of Michigan territory and the United States: 1 Terr.Laws, 900. And while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision. The punishment of all undefined offenses is fixed within named limits, and beyond the unregulated discretion of the courts.

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"There is, however, no authority to be found, so far as our examinations have gone, and so far as the criminal law citations are found in the best elementary books, which holds that such a practice [i.e., consecutive sentencing] exists at common law in felonies. In Reg v Cutbush, LR 2 QB 379 [1867], it is said distinctly that a statute was necessary to apply to felonies the practice in misdemeanors. That case points out how the British statutes have provided for it. That is a recent, and, beyond question, a correct, statement of the law.

"Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation. Under our constitution this must be done by statutes clearly pointing out in their titles and provisions the precise purpose designed.... As we have no statutes on the subject, we must, in our opinion, wait until the Legislature shall see fit to devise adequate means to avoid these difficulties."

It is clear that the Legislature has followed a conservative course of abrogating the common law with regard to consecutive sentencing. Prior to its adoption of M.C.L. Sec. 768.7b; M.S.A. Sec. 28.1030(2), the Michigan Legislature authorized discretionary consecutive sentencing in two instances: (1) where the defendant committed a felony while incarcerated ⁶ and (2) where the defendant was convicted for escape from incarceration. ⁷ The Legislature's reluctance to deviate from the common law is further evidenced within its adoption of the instant statute. As originally enacted by 1971 P.A. 180, the consecutive sentencing statute extended discretionary consecutive sentencing authority in the instance where a defendant committed a felony while free on bond pending final disposition of a prior felony charge:

"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 or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged...