People v. Clark
| Decision Date | 25 October 1972 |
| Docket Number | No. 3,Docket No. 12806,3 |
| Citation | 43 Mich.App. 476,204 N.W.2d 332 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theodore F. CLARK, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Allen R. Briggs, Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and LEVIN and TARGONSKI, * JJ.
On June 13, 1970 the defendant was arrested. He was charged with (1) breaking and entering, (2) forging check blanks stolen in the breaking and entering, (3) uttering and publishing check blanks so stolen, and (4) possession--at the time he was arrested--of a stolen motor vehicle.
On August 19, 1970, he pled guilty to the stolen-motor-vehicle charge and was sentenced to serve a term of 7 1/2 to 10 years.
On September 18, 1970, a Nolle prosequi was entered dismissing the other three charges.
Four days later, on September 22, 1970, the Michigan Supreme Court ruled that the possession-of-a-stolen-motor-vehicle statute 1 was restricted to situations where possession of the stolen automobile is coupled 'with intent to fraudulently transfer title' and that the portion of the statute prohibiting possession of a motor vehicle having reason to know it has been stolen 'must either be treated as surplusage or deemed inconsistent with the intent of the statute and deleted from it'. 2
On November 4, 1970, Clark filed a claim of appeal from his stolen-motor-vehicle conviction. On January 15, 1971, this Court, on the basis of a stipulation signed by the prosecuting attorney, entered an order directing that the conviction be set aside and the sentence vacated.
During the interim, on December 4, 1970, the prosecutor reinstituted two of the three previously dismissed charges--breaking ane entering, and forgery. Subsequently, on June 14, 1971, the prosecutor filed an amended information charging the offenses of breaking and entering and larceny in a building. On that day, Clark pled guilty to larceny in a building. 3 He was sentenced to serve a term of 3 years 237 days to 4 years in prison, and was given credit against that sentence for 171 days, being the time he had spent in the Ontonagon County Jail from December 23, 1970, the day he was returned from state prison, until June 17, 1971, the date of sentencing on the larceny charge.
He now appeals, claiming that
(1) the delay in prosecuting the forgery, breaking and entering, and larceny charges denied him his constitutional right to a speedy trial;
(2) he is entitled to sentence credit for 193 days, being the time served in county jail and in state prison from June 13, 1970, the date of his arrest, until December 23, 1970, when he was returned from state prison to the Ontonagon County Jail; and
(3) the trial judge abused his discretion in sentencing him to serve a term of 3 years 237 days to 4 years because that is not an indeterminate sentence.
In Michigan all sentences run concurrently in the absence of a statute otherwise providing. 4 Accordingly, after a defendant has pled guilty to one of several multiple charges pending against him, prosecutors generally dismiss the other charges after the defendant has been sentenced.
In Nol-prossing the other charges pending against Clark, the Ontonagon County Prosecutor proceeded on a basic underlying assumption, namely, that Clark had been validly convicted and would be required to serve the sentence which had been imposed--a sentence of 7 1/2 to 10 years.
The prosecutor's assumption proved to be erroneous. Four days after the other charges were Nol- prossed the Michigan Supreme Court--in a decision which the prosecutor could not have been expected to foresee--held that a statute which had been on the books for years, under which a large number of persons had been convicted and had served sentences, did not apply in the kind of case where it had most generally been applied.
It is well established that charges that have been Nol-prossed may be reinstated unless barred by the statute of limitations. 5
There is a special statute of limitations for multiple charges pending against persons who are tried on less than all the charges, are convicted and become inmates of a 'penal institution of this state'. That statute, 6 as judicially interpreted, provides in general that the untried charges shall be brought to trial within 180 days after the defendant is remanded to the custody of the Department of Corrections. 7
Clark cannot avail himself of this special statute of limitations because less than 180 days elapsed. The prosecutor reinstituted Nol-prossed charges within less than four months after Clark was sentenced; no claim is made that the prosecutor failed to prosecute those charges with adequate diligence after they were reinstituted.
Clark relies, rather, on the Michigan Supreme Court's decision in People v. Harrison, 386 Mich. 269, 274--276, 191 N.W.2d 371, 372 (1971). Harrison had been charged with two separate offenses of breaking and entering. After he was convicted of one of the two charges the other charge was adjourned for the reason that 'def. sentenced in another case--adj. till appeal time expires'. After Harrison filed an appeal a new trial date was set on the other charge. The Supreme Court ruled that what was done was The Court went on to say that Harrison had been deprived of a speedy trial and, although he had not demanded a speedy trial, 8 a motion for a speedy trial or to have the charge dismissed 'is not necessary when the Stated reason for the adjournment of the trial date serves to chill the exercise of a defendant's constitutional right to appeal a criminal conviction.' (Emphasis supplied.) 9
We read Harrison as expressing the Court's sense of indignation that a prosecutor would so attempt to impede a convicted person's exercise of his Michigan constitutional right to appeal. 10 The Court's invocation of the right to a speedy trial appears to have been the incidental peg on which this rule of supervisory control, designed to protect the appeal process, was hung.
Under long-established doctrine, a formal record-entered demand for a speedy trial must be made to invoke that constitutional right. 11 If the Supreme Court meant, in Harrison, to dispense with the demand requirement for All cases where a defendant has been convicted of one of several pending charges, it would not have used the carefully circumscribed language previously quoted from the Harrison opinion.
Clark argues that, although not Explicitly stated, the prosecutor's purpose in this case, as in Harrison, was to chill exercise of the right to appeal. On this record we do not perceive the unstated practice that the defendant attributes to the Ontonagon County Prosecutor.
Clark was sentenced on the stolen-motor-vehicle conviction on August 28, 1970. Eleven days later, September 8, 1970--well within the time for filing a post-conviction motion to withdraw guilty plea of for filing a claim of appeal--the prosecutor filed petitions with the trial court for leave to enter Nolle prosequis on the ground that Clark had been convicted of the stolen-motor-vehicle charge and that the conviction is 'now final' and the ends of justice no longer require prosecution of the pending charges. Those petitions were granted on September 9, 1970, and Nolle prosequis were filed on September 16, 1970, long before Clark filed his timely claim of appeal. 12
We recognize that a prosecutor could accomplish the same purpose sought to have been accomplished by the Harrison prosecutor by doing what the Ontonagon County Prosecutor did in this case, I.e., dismiss other charges promptly, and reinstatethe charges if and when an appeal is filed. Such a practice would, no doubt, become known and, by indirection, the prosecutor could accomplish what the Harrison prosecutor was prevented from accomplishing.
The Supreme Court has chosen, at least in words, to limit its Harrison rule to cases where the 'stated reason' for the adjournment of the trial is to chill exercise of a defendant's constitutional right to appeal a criminal conviction. And, even if the rule is not so limited--if it applies as well to cases where it can be demonstrated that, although not 'stated', pending charges were held over the head of a convicted person in an effort to dissuade him from appealing--it has not been shown on this record that what was done here was done in an effort to chill Clark's, or any other defendant's, exercise of his right to appeal.
This is obviously a case of plea bargaining. Recently there has been considerable discussion concerning the nature of plea-bargaining contracts: 13 what is the remedy for nonperformance of a plea-bargaining contract--is it specifically enforceable or is the remedy 'rescission' (i.e., granting a motion to withdraw a guilty plea)? 14
Clark was relieved of his part of the bargain as a result of a decision of the Michigan Supreme Court. Even if Clark had not timely appealed, it would, of course, have been intolerable to keep him imprisoned for a crime he did not, in the light of the new interpretation of the statute, commit. 15
Whether Clark sought to get out of the bargain or was relieved of the bargain is beside the point. He was not required to serve the sentence imposed by the court. We see no reason to hold the prosecutor in such a case to his part of the bargain. Clearly, this is a case of mutual mistake concerning a basic underlying assumption; on principle, although this is a mistake of law and not of fact, the people are entitled to be relieved of the consequences of that mistake.
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