People v. Curry, Docket Nos. 78216

• Citation: 371 N.W.2d 854,142 Mich.App. 724
• Decision Date: 15 August 1985
• Docket Number: 78784,Docket Nos. 78216
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony CURRY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony CURRY, Defendant-Appellant. 142 Mich.App. 724, 371 N.W.2d 854
• Court: Court of Appeal of Michigan (US)

Page 854

371 N.W.2d 854

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony CURRY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony CURRY, Defendant-Appellant.

Docket Nos. 78216, 78784.

142 Mich.App. 724, 371 N.W.2d 854

Court of Appeals of Michigan.

Submitted Feb. 8, 1985.

Decided May 8, 1985.

Released for Publication Aug. 15, 1985.

[142 MICHAPP 727] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Robert B. Ebersole, Chief Appellate Asst. Pros. Atty., and Susan L. LeDue, Asst. Pros. Atty., for people.

James R. Neuhard, State Appellate Defender (by Karla K. Goodman), Lansing, for defendant on appeal.

Before DANHOF, C.J., P.J., and BURNS and BEASLEY, JJ.

BEASLEY, Judge.

Defendant, Anthony Curry, appeals in each of two consolidated appeals.

In case number 78216, defendant appeals from 1977 jury convictions for entering or breaking into a motor vehicle for the purpose of stealing property worth not less than $5, contrary to M.C.L. Sec. 750.356a; M.S.A. Sec. 28.588(1), and of being an habitual offender (sixth felony), contrary to M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Defendant was sentenced to not less than three nor more than five years in prison on the breaking or entering conviction and to life imprisonment for the habitual offender conviction.

In case number 78784, defendant appeals from the May 31, 1984, denial of his motion for a new trial in regard to a 1970 plea-based conviction for attempted larceny in a building, contrary to M.C.L. Sec. 750.360; M.S.A. Sec. 28.592 and M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. Defendant was sentenced to not less than one and one-half nor more than two years in prison for that offense. Defendant appeals by leave granted from denial of his motion. Since defendant's[142 MICHAPP 728] 1970 conviction was one of the underlying convictions for his 1977 habitual offender conviction, the cases were consolidated on appeal.

In case number 78216, defendant had been convicted by a jury of removing a bank bag containing approximately $40 from an unoccupied car. The same jury also found that this was defendant's sixth felony offense, after which Judge Ray C. Hotchkiss, then an Ingham County Circuit Court Judge, imposed the enhanced life sentence as an habitual offender. Defendant appealed his convictions to this Court. In his original appellate brief, defendant raised eight issues, none of which concerned the constitutionality of the convictions upon which the habitual criminal conviction was based or the propriety of the sentence imposed. However, on or about November 7, 1978, defendant moved to have the case remanded for determination of the constitutionality of the convictions upon which his habitual criminal conviction was based. The prosecution objected to the remand as being untimely. On January 17, 1979, this Court remanded the case to Judge Hotchkiss for determination of the constitutionality of defendant's prior convictions, but retained jurisdiction.

On April 12, 1979, after argument, Judge Hotchkiss upheld the constitutionality of all convictions challenged. He did, however, hold that two 1973 convictions could only be considered as one conviction for habitual offender purposes. This Court did not request submission of additional briefs on the issue of the constitutionality of the convictions and, on September 21, 1979, issued an unpublished, per curiam opinion affirming defendant's convictions. ¹ This Court did not discuss defendant's claims that the convictions upon which his habitual[142 MICHAPP 729] offender conviction was based were constitutionally infirm.

Defendant applied for leave to appeal to the Supreme Court on August 14, 1981. Among other things, he alleged that his punishment was cruel or unusual and that the convictions upon which his habitual offender conviction was based were constitutionally infirm. On May 7, 1984, in lieu of granting leave to appeal, the Supreme Court, 419 Mich. 865, 347 N.W.2d 456, vacated this Court's judgment and remanded to this Court for reconsideration in light of People v. Coles. ²

On January 20, 1984, while awaiting the Supreme Court's decision in case number 78216, defendant filed a delayed motion for new trial with respect to one of the underlying convictions leading to his habitual offender conviction, which, as previously indicated, is the subject matter of case number 78216. The challenged conviction was based on an April 3, 1970, plea to attempted larceny in a building, taken before Ingham County Circuit Court Judge Jack W. Warren. During his plea-taking proceedings, Judge Warren informed defendant that by pleading guilty he waived the right to trial by jury, the right to representation by an attorney and the right to have his guilt proven beyond a reasonable doubt. However, Judge Warren did not advise defendant that his plea of guilty waived his right against compulsory self-incrimination and his right of confrontation. On May 31, 1984, Judge Warren entered an opinion and order denying defendant's delayed motion for new trial. Defendant's appeal of such order is case number 78784. On this consolidated appeal defendant raises two issues.

First, in case number 78784, defendant claims [142 MICHAPP 730] that the trial court abused its discretion in denying his delayed motion for a new trial. We do not look with favor upon long-delayed motions for new trials. ³ Long delays often make reprosecution impossible because of death or unavailability of witnesses. Whether to grant a delayed motion for new trial is within the sound discretion of the trial court and that decision will not be disturbed on appeal unless a clear abuse of discretion is shown. ⁴

Defendant's delayed motion for new trial on the 1970 attempted larceny conviction was not made until some 14 years after the date of his conviction. The record establishes that defendant was questioned sufficiently to establish the facts of the offense and that defendant committed the offense. Nothing indicates that defendant has ever contended that he was innocent of the crime to which he pled guilty. In light of the strong evidence that defendant committed the crime, with no evidence presented to the contrary, we hold that there was no abuse of discretion in denying defendant's long-delayed motion for new trial.

Second, in case number 78216, defendant claims that the trial court abused its discretion by sentencing him to life imprisonment on the habitual offender conviction after he had been convicted of breaking or entering a motor vehicle for the purpose of stealing property worth not less than $5.

When sentencing a defendant, the trial court may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information considered or the source of such information. ⁵ [142 MICHAPP 731] Proper criteria for determining an appropriate sentence include: (1) the disciplining of the wrongdoer; (2) the protection of society; (3) the potential for reformation of the offender; and (4) the deterring of others from committing like offenses. ⁶ Other appropriate considerations are the nature and severity of the crime committed, ⁷ behavior by the defendant which demonstrates a disrespect for legal processes and a lack of respect for the law, ⁸ and defendant's previous criminal record. ⁹ The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. ¹⁰

When an offender is convicted of a second felony, the court may sentence that person to a maximum term that is up to one and one-half times the longest term prescribed for a first conviction of that offense. ¹¹ If a person has been convicted of two or more felonies and commits a subsequent felony, that person may be punished by imprisonment for a maximum term which is not more than twice the longest term prescribed by law for a first conviction of that offense. ¹² If a person has been convicted of three or more felonies and commits a subsequent felony punishable upon a first conviction for a maximum term of five [142 MICHAPP 732] years or more, the court may sentence the person for a term of life or to a lesser term. ¹³

Convictions under the habitual offender statute are based upon additional, particular criminal acts and not upon the individual's status as an habitual criminal. ¹⁴ The Legislature did not intend to make a substantive crime out of being an habitual offender, but for deterrent purposes intended to augment the punishment for second or subsequent offenders. ¹⁵ The habitual offender legislation merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence. ¹⁶ It requires the courts to take into consideration the persistence of the defendant in his criminal course. ¹⁷ The statutes are constitutional and the sentences under them are not cruel and unusual, because the state has a right to protect itself from individuals who continue to engage in criminal activities. ¹⁸ The sentencing guidelines promulgated by the Supreme Court were not in effect when defendant was sentenced, and he concedes that they do not apply to those convicted as habitual offenders.

We will review a trial court's exercise of discretion in sentencing, but we will afford relief to the defendant only if we find that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks our conscience. ¹⁹ A sentence is excessively severe when it far exceeds what all [142 MICHAPP 733] reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it. ²⁰ A sentence does not constitute cruel and unusual punishment when it is within the statutory limits and does not shock the judicial...