People v. Davis

• Decision Date: 06 May 1983
• Docket Number: Docket No. 62548
• Citation: 123 Mich.App. 553,332 N.W.2d 606
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas C. DAVIS, Jr., Defendant-Appellant. 123 Mich.App. 553, 332 N.W.2d 606
• Court: Court of Appeal of Michigan — District of US

Page 606

332 N.W.2d 606

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas C. DAVIS, Jr., Defendant-Appellant.

Docket No. 62548.

123 Mich.App. 553, 332 N.W.2d 606

Court of Appeals of Michigan.

Submitted Nov. 4, 1982.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 555] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert Cares, Pros. Atty., and Jeanette L. Jackson, Asst. Pros. Atty., for the people.

O'Malley & Welty by William D. Welty, Three Rivers, for defendant-appellant.

Before MacKENZIE, P.J., and MAHER and SIMON, ^* JJ.

PER CURIAM.

Defendant pled guilty to arson of real property. M.C.L. Sec. 750.73; M.S.A. Sec. 28.268. Sentenced to from six and one-half to ten years, he appeals by right.

The facts relevant to this appeal, so far as we can determine, are as follows. Defendant was arrested[123 MICHAPP 556] in June, 1978. He was given a preliminary examination on June 29, 1978, and was bound over to circuit court. At that time, defendant was represented by appointed counsel. Within ten days, defendant filed a notice of insanity defense. The trial court, on July 10, ordered the defendant committed for a diagnostic examination to determine competency to stand trial and his responsibility for the offense. On that date, the trial court also appointed new counsel for defendant. Shortly thereafter, the defendant was removed from the county jail to the Kalamazoo Regional Psychiatric Hospital due to his behavior problems. The next two years are something of a mystery unilluminated by the record. Apparently the defendant was civilly committed to Kalamazoo Regional Psychiatric Hospital on September 17, 1978. At some point during his stay at the hospital, the defendant escaped; however, the duration of his absence is unclear. The defendant claims that he left the hospital on July 6, 1979, and returned on February 8, 1980. The record suggests--but does not establish--a longer absence. Nevertheless, by June 26, 1980, it had become clear that the defendant had not been given a forensic examination and, on that date, the trial court ordered a second commitment for a diagnostic examination. The psychiatric report was filed on September 8, 1980, and, on the same day, defendant was found incompetent, after a hearing. The trial court also appointed a new attorney for defendant. Defendant was later reexamined for competency and, on December 17, 1980, the trial court found him competent to stand trial. Defendant pled guilty but mentally ill to arson of real property on March 10, 1981. On April 3, 1981, defendant petitioned for appointment of appellate counsel. The trial court granted the petition on January 14, 1982.

[123 MICHAPP 557] Defendant raises four issues on appeal which we discuss in the order presented.

First, defendant argues that the two-year delay between the original order for commitment for forensic examination and the administration of the examination requires reversal. Defendant advances three arguments. Initially, he contends that the delay violated M.C.L. Sec. 330.2044; M.S.A. Sec. 14.800 (1044). That statute provides in pertinent part:

"(1) The charges against a defendant determined incompetent to stand trial shall be dismissed:

* * *

"(b) Fifteen months after the date on which the defendant was originally determined incompetent to stand trial."

Defendant's reliance on that statute is misplaced. The 15-month statutory period begins to run after an accused is adjudicated incompetent, not after he is ordered committed for diagnostic examination. While more than 15 months elapsed between the trial court's first order for commitment and defendant's conviction, only 6 months separated the adjudication of his incompetence and his guilty plea. Thus, the statute did not require dismissal of the charge against defendant. Next, defendant maintains that the delay violated M.C.L. Sec. 330.2028; M.S.A. Sec. 14.800(1028). That statute mandates that a forensic examination shall be performed "within 60 days of the date of the order" to undergo such a procedure. Defendant's examination was conducted well after the 60-day period had elapsed. We cannot agree with defendant, however, that that delay alone requires reversal on due process grounds. While the delay may have impaired defendant's ability to develop his insanity defense to some [123 MICHAPP 558] extent, the delay would not have prohibited defendant from securing a fair trial. Finally, defendant contends that certain United States Supreme Court cases require reversal of his conviction. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court held that substantive and procedural safeguards must be followed to commit an accused who has been determined incompetent where the commitment is virtually permanent. In McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), the Court held that an individual cannot be committed "for observation" for a long period of time without a due process hearing. These cases establish that an individual may not be committed to a psychiatric institution for an extended period except after a due process hearing. The record, as we noted above, does not affirmatively disclose that defendant was formally committed in September, 1978. If he was not, defendant's extended institutionalization would have been a denial of due process. Nevertheless, defendant's current incarceration is not a result of his commitment; it is the product of his conviction on a plea of guilty. Any defect in the validity of the commitment did not infect the validity of defendant's conviction.

Second, defendant argues that he was denied his right to a speedy trial. The people contend that defendant has waived this claim by pleading guilty, citing People v. Parshay, 104 Mich.App. 411, 304 N.W.2d 593 (1981), lv. den. 411 Mich. 1081 (1981). We disagree with Parshay and hold that a speedy trial claim is not waived by a guilty plea. A guilty plea does not waive jurisdictional defenses. People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), cert. den. 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). A jurisdictional defense is a complete[123 MICHAPP 559] defense, that is, a defense that would bar conviction even if the people prove their case. People v. Reid, 113 Mich.App. 262, 317 N.W.2d 589 (1982); People v. Riley, 88 Mich.App. 727, 279 N.W.2d 303 (1979). A defendant who has been denied a speedy trial may not be properly convicted and, if convicted, the conviction must be reversed and the defendant discharged. See People v. Bennett, 84 Mich.App. 408, 269 N.W.2d 618 (1978). Consequently, a claim of denial of the right to a speedy trial is a complete defense and is not waived by a guilty plea.

We next proceed to the merits of defendant's speedy trial claim. The right to a speedy trial is guaranteed to a criminal defendant by both the federal and Michigan constitutions. U.S. Const., Am. VI; Const.1963, art. 1, Sec. 20. In People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), the Michigan Supreme Court adopted the four-factor inquiry into a denial of speedy trial claim announced by the United States Supreme Court in Barker v. Wingo, 407 U.S 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors to be considered are: (1) length of delay, (2) reason for delay, (3) the defendant's assertion of his speedy trial right and (4) prejudice to the defendant. Applying this analysis to the present case, we find as follows:

Length of delay: The purpose of this factor was well stated in Barker v. Wingo, supra:

" 'The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance.' " 407 U.S. 514, 530, 92 S.Ct. at 2192, quoted in People v. Collins, 388 Mich. 680, 688-689, 202 N.W.2d 769 (1972).

The Michigan Supreme Court has long held that [123 MICHAPP 560] an 18-month delay is presumptively prejudicial. See People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699 (1948); People v. Grimmett, supra; People v. Collins, supra. The delay in the present case exceeded 31 months. We must presume that defendant was prejudiced by this protracted postponement and proceed to consider the other factors.

Reason for delay: This factor calls on us to examine the extent to which the delay was justified. Our inquiry is hampered, however, by a record that fails to disclose the reasons underlying the delay. In particular, we are uncertain why defendant's second diagnostic examination was delayed for two years. The record suggests that during most of this period the defendant was away from Kalamazoo Regional Psychiatric Hospital without permission. The record, however, is not definite on this point. Accordingly, we remand to the trial court to conduct an evidentiary hearing and make findings of fact as to the reasons for the delay in defendant's prosecution. Within 60 days from the release date of this opinion the trial court shall conduct this hearing and file with this Court the hearing transcript along with the trial court's findings of fact.

The record need not be amplified to consider the remaining two factors.

Defendant's assertion of speedy trial right: The defendant did not assert...