People v. Conner

• Decision Date: 20 March 1995
• Docket Number: Docket No. 162560
• Citation: 209 Mich.App. 419,531 N.W.2d 734
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Curtis CONNER, Defendant-Appellee. *
• Court: Court of Appeal of Michigan — District of US

Page 734

531 N.W.2d 734

209 Mich.App. 419

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Curtis CONNER, Defendant-Appellee. ^*

Docket No. 162560.

Court of Appeals of Michigan.

Submitted Feb. 9, 1995, at Lansing.

Decided March 20, 1995, at 9:55 a.m.

Released for Publication May 24, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., and Janice A. Kabodian, Asst. Pros. Atty., for people.

Michael L. Steinberg, Detroit, for defendant.

Before FITZGERALD, P.J., and TAYLOR and MARKMAN, JJ.

MARKMAN, Judge.

The prosecution appeals the circuit court's order quashing an information under the so-called second-felony (or habitual offender) statute, M.C.L. § 769.10; M.S.A. § 28.1082, and awarding defendant credit for time served on a conviction of prison escape, M.C.L. § 750.193; M.S.A. § 28.390. We reverse and remand.

In 1983, defendant was sentenced to ten to twenty years in prison for second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549 and the mandatory consecutive two-year prison term for possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). On September 8, 1988, while serving his sentence, he escaped. At the time, he was an inmate at Camp Pontiac and on work assignment at the Michigan State Fairgrounds. Defendant was not apprehended until June 10, 1991. Defendant initially waived the preliminary examination. On October 28, 1991, defendant was arraigned in the Oakland Circuit Court on charges of prison escape and being a second-felony offender.

A pretrial conference was held on June 1, 1992, and at that time, the second attorney appointed to this matter withdrew as defense counsel. New counsel appeared at the June 15, 1992, pretrial conference and requested a remand to the district court for a preliminary examination. That motion was granted, and the preliminary examination was conducted on October 14, 1992. At the conclusion of the examination, defendant was bound over for trial.

Defendant was then arraigned in the circuit court on November 2, 1992. A pretrial conference was held on November 30, 1992, and trial was scheduled for February 12, 1993. On the date scheduled for trial, the court granted defendant's motion to quash the habitual offender information. The court found that the 180-day rule, M.C.L. § 780.131; M.S.A. § 28.969(1), applied to the habitual offender information, and that the defendant had not been brought to trial within the 180-day period.

Thereafter, defendant pleaded no contest to the remaining charge of prison escape. The prosecutor objected to the trial court accepting a no-contest plea. During the plea-taking procedure, the following exchange occurred between the trial court and defendant:

The Court: Do you acknowledge and agree that the only promise that this Court has made to you in regards to a Killebrew [People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834 (1982) ] plea, would be that I would, assuming the presentence report is appropriate, would give you time served?

The Defendant: Yes, sir.

The Court: Now, in the event that the presentence report comes back and suggests that another sentence should be given, where I will have to keep you in jail, keep you in prison, then I would entertain a motion by your attorney to withdraw the plea. Do you understand that?

The Defendant: Yes, sir.

There is no dispute that defendant waited 518 days for the charge of prison escape to come to trial. On March 2, 1993, defendant was sentenced to 518 days' imprisonment with credit for the 518 days served. Defendant was then returned to the custody of the Department of Corrections to continue his original ten- to twenty-year sentence.

The prosecution argues that the 180-day rule does not apply to the habitual offender information. The defendant contends, however, that the prosecution failed to object to the relief sought in the motion to quash the habitual offender information. As a general rule, issues not raised before and considered by the trial court are not properly preserved for appellate review. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994); People v. Stacy, 193 Mich.App. 19, 28, 484 N.W.2d 675 (1992). However, this issue was addressed and decided by the trial court. More specifically, the court found as follows:

Ladies and gentlemen, the case before me at the present time offers up an issue that is unique at first impression in the State of Michigan as to whether or not the 180 day responsibility to bring an individual before the Court comes under--comes within the ambit of the habitual offender statute.

The Court is satisfied, after reviewing Michigan law that really doesn't give too much help in that regard, is satisfied that in order to comport with the spirit of the 180-day rule that, indeed, the habitual offender rule must come under it. And, therefore, the Court will grant the motion and quash the [i]nformation as to the habitual offender.

Whether the 180-day rule applies to habitual offender informations is a question of law. We review questions of law de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n., 437 Mich. 75, 80, 467 N.W.2d 21 (1991).

The 180-day rule was amended by 1988 P.A. 400 ¹ to provide that the rule does not apply to a charged criminal offense committed by an inmate while incarcerated in a correctional facility, or committed after the inmate has escaped from a facility and before the inmate has been returned to the custody of the Department of Corrections. M.C.L. § 780.131; M.S.A. § 28.969(1); People v. Smith, 438 Mich. 715, 718, 475 N.W.2d 333 (1991) (lead opinion of Justice Levin). The amended version of the statute became effective on March 30, 1989. M.C.L. § 780.131; M.S.A. § 28.969(1); People v. Corlew, 186 Mich.App. 320, 323, 463 N.W.2d 243 (1990). Both parties cite and treat as applicable the amended version of the statute in their appellate briefs. Although the instant prison escape occurred on September 8, 1988, we agree that the amended statute should be applied. Corlew, supra. In Corlew, this Court held that "the amended version of M.C.L. § 780.131; M.S.A. § 28.969(1) applies to any case which arose on or after March 30, 1989, the effective date of the amendment, and to those cases pending on March 30, 1989, over which the trial court had not yet lost jurisdiction under the preamendment provisions of the 180-day rule." Id. at 323, 463 N.W.2d 243. In this case, the defendant was not apprehended until 1991. Thus, the case arose after the amendment took effect on March 30, 1989. Accordingly, the amended version of the statute applies.

MCR 6.004(D), ² which became effective on October 1, 1989, is a modification of the Supreme Court's earlier construction of the statute. People v. Taylor, 199 Mich.App. 549, 553, 502 N.W.2d 348 (1993). It is not in conflict, however, with the statutory 180-day rule. Id.

The purpose of the 180-day rule is to give an inmate the opportunity to have sentences run concurrently. People v. McCullum, 201 Mich.App. 463, 465, 507 N.W.2d 3 (1993); People v. Smith, supra at 718, 475 N.W.2d 333. This Court previously held that the 180-day rule did not apply to habitual offender informations for the reason that habitual offender status is a sentencing enhancement condition rather than a separate criminal offense. People v. Holbrook, 60 Mich.App. 628, 231 N.W.2d 469 (1975); People v. Ungurean, 51 Mich.App. 262, 214 N.W.2d 873 (1974).

Holbrook and Ungurean were subsequently criticized, however, in light of subsequent developments regarding habitual offender proceedings, and the 180-day rule was held applicable. In People v. Leroy, 157 Mich.App. 334, 341-342, 403 N.W.2d 555 (1987), this Court found:

The question ... is not simply whether a separate criminal offense has been charged, but rather whether our procedural rules, statutes and safeguards will be withheld. The procedures established for trying a defendant on an habitual offender information are remarkably similar to those used in a trial for a criminal offense....

... The statute does not call being an habitual offender a felony or misdemeanor, but we treat it exactly as if it were, except that the sentence imposed depends on the underlying offense.

The panel found that "the purpose of the 180-day rule is to dispose of untried warrants, indictments, informations or complaints against inmates of penal institutions of this state." (Emphasis in original.) Id. at 343, 403 N.W.2d 555, citing People v. Woodruff, 414 Mich. 130, 323 N.W.2d 923 (1982). The panel further noted that "[t]his purpose would not be served by allowing supplemental informations to stand untried indefinitely." Leroy, supra at 343-344, 403 N.W.2d 555.

The habitual offender statute does not create a substantive crime that is separate from and independent of the principal charge. People v. Bewersdorf, 438 Mich. 55, 67, 475 N.W.2d 231 (1991). However, even if we accept as in Leroy that a defendant will not be denied the protections afforded by the 180-day rule solely because the defendant is charged with being an habitual offender, this alone does not mandate application of the 180-day rule to habitual offender informations. We must continue the analysis to determine if the habitual offender information is properly excepted from the rule.

In Smith, supra, a plurality opinion, Justices Levin, Griffin, Mallett, Boyle, and Riley agreed that the 180-day rule did not apply to a charge of prison escape, which offense required a consecutive sentence. Justice Levin writing the lead opinion, adopted the view expressed in People v. Loney, 12 Mich.App. 288, 292, 162 N.W.2d 832 (1968):

The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the...