People v. Ewing
| Decision Date | 23 October 1980 |
| Docket Number | Docket No. 46140 |
| Citation | 301 N.W.2d 8,101 Mich.App. 51 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Booker EWING, Jr., Defendant-Appellant. 101 Mich.App. 51, 301 N.W.2d 8 |
| Court | Court of Appeal of Michigan — District of US |
Myron E. Sanderson, Jackson, for defendant-appellant.
[101 MICHAPP 53] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.
Before DANHOF, C. J., and KELLY and CORSIGLIA, * JJ.
Defendant pled guilty to the charge of assaulting a prison employee in violation [101 MICHAPP 54] of M.C.L. § 750.197c; M.S.A. § 28.394(3). Defendant was sentenced to a term of 11/2 to 4 years imprisonment and brings this appeal as of right.
On the day of the assault, defendant was assigned to Camp Waterloo and was enrolled in a work-pass program washing dishes in an Ann Arbor hotel. At the end of his work shift, defendant drank "a few beers" before being returned to the camp. When returned to the camp, defendant was told by a second inmate that prison officers wanted to see the defendant at the camp's main office. At the office, the complainant prison guard attempted a shake down of defendant under a suspicion that the defendant had been drinking. Defendant refused the shake down and tried to leave the office. As the complainant pursued defendant to return him to the office, defendant picked up a shovel and struck complainant on the side of the head. Pursuant to an agreement between the prosecutor and defendant, defendant pled guilty but was not charged as a second offender.
We reject as frivolous each of defendant's seven claims of error with regard to the guilty plea proceedings since our review of the record discloses full compliance with GCR 1963, 785.7.
The issue which merits extended treatment is defendant's claim that the unreasonable 373-day delay between the date of arrest and trial date violated his constitutional right to a speedy trial or alternatively, violated the 180-day rule if that rule is applicable. Const.1963, art. 1, § 20, M.C.L. §§ 768.1, 780.131; M.S.A. §§ 28.1024, 28.969(1).
Consideration of defendant's constitutional claim requires a balancing of four factors: (1) length of [101 MICHAPP 55] delay, (2) reason for delay, (3) whether defendant asserted his right to a speedy trial; and (4) prejudice to defendant caused by the delay. With respect to the first criterion, length of delay, no special formula exists; it has been held that a delay in excess of 18 months results in a presumption of prejudice, People v. Bennett, 84 Mich.App. 408, 269 N.W.2d 618 (1978), and that less than six months is insufficient to trigger further investigation. The delay of approximately 12 months here necessitates further examination into the merits of defendant's claim.
The delay appears, from our review of relevant dates included in defendant's brief, to have been caused by court congestion. All pretrial proceedings were held at an orderly pace and were completed approximately four months after defendant's arraignment, which leads us to conclude, as the people submit, that delay was strictly the result of docket scheduling problems. While delay of this nature is attributable to the prosecution, it has a neutral tint and should be given only minimal weight in determining whether defendant's speedy trial right has been violated. People v. Forrest, 72 Mich.App. 266, 249 N.W.2d 384 (1976); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Further, defendant concedes that he never asserted his right to a speedy trial. While such failure does not automatically constitute a waiver of the right, it is strong evidentiary support for the conclusion that defendant's right was not violated. People v. Hammond, 84 Mich.App. 60, 269 N.W.2d 488 (1978); United States v. Mulligan, 520 F.2d 1327 (CA6, 1975), cert. den., 424 U.S. 919, 96 S.Ct. 1123, 47 L.Ed.2d 325 (1975).
Finally, as to defendant's claim of prejudice, we [101 MICHAPP 56] conclude that in this particular case it is a factor of minimal import. The impairment to his defense, he alleges, was his inability to personally contact witnesses due to his incarceration and that his attorney could not perform this task as defendant knew the individuals by sight but not by names. Defendant also claims personal prejudice in the form of loss of privileges in that he was confined to a normal cell block following the assault, whereas he was formerly a member of a work crew and enjoyed more freedom of movement. We find these complaints unsubstantial.
With respect to the two categories of prejudice a defendant may suffer as a result of delay, impairment of defense is clearly the most serious. People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973). We simply do not accept defendant's argument that counsel could not obtain a list of names of other members on the work crew or other potential witnesses and contact them for interview. This was after all not a crime of great complexity and defendant's allegations of prejudice are purely speculative. They were not raised in the circuit court and this fact goes hand and glove with the lack of demand for a speedy trial. We think this same reasoning applies to defendant's claim of loss of personal privileges within the Department of Corrections. See People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916 (1969). We conclude that defendant was not denied the constitutional right to a speedy trial.
Since the original briefs in this case were filed, a recent decision of this Court has held that the 180-[101 MICHAPP 57] day rule specifically applies to offenses committed during incarceration. We think the panel which decided that case erred and we now examine whether the 180-day rule, a violation of which may result in dismissal of the charges against the defendant, is applicable under the present facts. M.C.L. § 780.131; M.S.A. § 28.969(1), provides:
It is defendant's position that the 180-day rule applies to offenses committed by a prison inmate even when any sentences for such offenses would be mandatorily consecutive. M.C.L. § 768.7a; M.S.A. § 28.1030(1). Defendant relies on a recent decision of this Court, People v. Moore, 96 Mich.App. 754, 293 N.W.2d 700 (1980). After a careful review of the Moore opinion and People v. Loney, 12 Mich.App. [101 MICHAPP 58] 288, 162 N.W.2d 832 (1968), 1 we are convinced that Loney represents the better view. The Moore Court, in attempting to discredit the well-established rule of Loney, held that absent any ambiguity in the language of the statute, its "plain meaning" must be given effect and therefore the rule applies equally to inmates who commit offenses prior to or during...
To continue reading
Request your trial
-
People v. Smith, Docket No. 89414
...183 Mich.App. 537, 455 N.W.2d 719 (1990).3 M.C.L. Sec. 780.133; M.S.A. Sec. 28.969(3). See n. 1.4 Similarly see People v. Ewing, 101 Mich.App. 51, 59-60, 301 N.W.2d 8 (1980). But see People v. Moore, 96 Mich.App. 754, 761-762, 293 N.W.2d 700 (1980), expressing the contrary view adopted by t......
-
People v. Williams
...rev'd 417 Mich. 878, 329 N.W.2d 304 (1983), People v. Grandberry, 102 Mich.App. 769, 302 N.W.2d 573 (1980), and People v. Ewing, 101 Mich.App. 51, 301 N.W.2d 8 (1980) (agreeing with Loney that the 180-day rule does not apply to criminal defendants who are facing charges that would involve m......
-
People v. Cain
...2182. Some of the delays were attributable to docket congestion, which minimally weighs against the prosecution. People v. Ewing, 101 Mich.App. 51, 55, 301 N.W.2d 8 (1980). When considered together, we see no evidence that the prosecution is substantially to blame for the delays in this cas......
-
People v. Holland
...Even though scheduling delays are attributable to the prosecution, such delays are to be given minimal weight. People v. Ewing, 101 Mich.App. 51, 55, 301 N.W.2d 8 (1980). The delay in bringing the instant defendant to trial was slight and given the fact that the prosecution was required to ......