People v. Grier

• Decision Date: 08 October 1986
• Docket Number: Docket No. 79473
• Citation: 393 N.W.2d 551,152 Mich.App. 129
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel GRIER, Defendant-Appellant. 152 Mich.App. 129, 393 N.W.2d 551
• Court: Court of Appeal of Michigan — District of US

Page 551

393 N.W.2d 551

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel GRIER, Defendant-Appellant.

Docket No. 79473.

152 Mich.App. 129, 393 N.W.2d 551

Court of Appeals of Michigan.

Submitted Aug. 7, 1985.

Decided March 25, 1986.

Released for Publication Oct. 8, 1986.

[152 MICHAPP 130] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Asst. Pros. Atty., for the People.

Lawson & Lawson, P.C. (by David H. Lawson), Detroit, for defendant-appellant on appeal.

Before HOOD, P.J., and HOLBROOK and D.P. KERWIN ^*, JJ.

PER CURIAM.

On October 27, 1981, defendant pled guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, before Oakland County Circuit Judge Farrell E. Roberts, who sentenced him to 10 to 20 years [152 MICHAPP 131] in prison. On June 1, 1984, pursuant to a subsequent motion by defendant, Judge Roberts's successor, Oakland County Circuit Judge Fred M. Mester, resentenced defendant to 6 to 20 years in prison. The prosecutor appeals by leave granted.

The first issue we address is whether this appeal is properly before us.

In People v. Cooke, 419 Mich. 420, 427, 355 N.W.2d 88 (1984), our Supreme Court held that appeals by prosecutors in criminal cases are allowed only in the specific circumstances set forth in Sec. 12 of the Code of Criminal Procedure, M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. These circumstances are limited to an appeal from a decision based on the invalidity or construction of a statute or "a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy". 419 Mich. 426, 355 N.W.2d 88, quoting M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109.

In this case, the prosecutor appeals by leave granted, causing him to argue that Sec. 12 was intended to limit only appeals of right, not appeals by application. In support of his argument, the prosecutor points to Cooke, supra, in which the Court stated that the "Legislature's intent that appeals by the people be governed by the specific provisions of Sec. 12 * * * is also demonstrated by its subsequent amendment, in 1980, of Sec. 3 of the same part of the Code of Criminal Procedure". 419 Mich. 430, 355 N.W.2d 88. This amendment inserted in subsection (1) of Sec. 3 the following:

"Subject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right of appeal from a final judgment or trial order as follows * * *." M.C.L. Sec. 770.3; M.S.A. Sec. 28.1100 (emphasis added).

The prosecutor reasons that, since the amendment[152 MICHAPP 132] of Sec. 3 was only of Sec. (1) dealing with appeals as of right, the remaining subsections of Sec. 3 dealing with appeals by application remain unrestricted by Sec. 12.

The prosecutor's argument is disingenuous. Nothing in Sec. 3 indicates an intent by the Legislature to give the prosecutor a greater ability to appeal by application than exists as of right. Therefore, we conclude that the provisions of Sec. 12 control appeals by application as well as appeals as of right.

The only provision of Sec. 12 which could possibly apply to the case at bar is subsection (1)(c) which allows appeals "[f]rom a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy * * * ". (Emphasis added.) Because defendant pled guilty in this case, jeopardy attached when the sentence was imposed. People v. Leonard, 144 Mich.App. 492, 375 N.W.2d 745 (1985); People v. Alvin Johnson, 396 Mich. 424, 431 n. 3, 240 N.W.2d 729 (1976); People v Rose, 117 Mich.App. 530, 535, 324 N.W.2d 25 (1982); People v. Burt, 29 Mich.App. 275, 277, 185 N.W.2d 207 (1970). While arguably jeopardy vanished when the trial court vacated defendant's original sentence, it attached again at resentencing. Therefore, Sec. 12 does not permit the instant appeal.

However, because the prosecutor contends that the trial court exceeded its powers in vacating defendant's original sentence and resentencing him, we exercise our discretionary authority under GCR 1963, 820.1(7) and consider the claim of appeal as a complaint for an order of superintending control. GCR 1963, 711.4(a). See People v. Barnes, 142 Mich.App. 679, 369 N.W.2d 882 (1985).

Turning to the merits of the prosecutor's appeal, we conclude that the trial court did not exceed its authority in resentencing the defendant.

[152 MICHAPP 133] In People v. Whalen, 412 Mich. 166, 169-170, 312 N.W.2d 638 (1981), our Supreme Court explained the trial court's limited authority to resentence a defendant:

"In People v. Fox, 312 Mich. 577, 582, 20 N.W.2d 732 (1945), this Court held that a trial court is without authority to set aside a valid sentence and impose a new one, because to do so 'would infringe upon the exclusive power of the governor under the Constitution to commute sentence'.

"A court's authority to resentence depends, therefore, on whether the previously imposed sentence is invalid. Clearly a sentence beyond statutory limits is invalid. A sentence within statutory limits may also be invalid on a number of grounds. It is invalid if the sentencing court relies on constitutionally impermissible considerations, such as the defendant's constitutionally infirm prior convictions, or improperly assumes a defendant's guilt of a charge which has not yet come to trial, or the court fails to exercise its discretion because it is laboring under a misconception of the law, or conforms the sentence to a local sentencing policy rather than imposing an individualized sentence. More recently, this Court has held invalid sentences which do not comply with essential procedural requirements such as failure to utilize a 'reasonably updated' presentence report or to provide the defendant and his counsel with the opportunity to address the court before sentence is imposed." (Footnotes omitted.)

In the case at bar, the trial court was asked to vacate defendant's sentence because the sentence was excessive and was allegedly based upon consideration of a prior conviction listed in the presentence report that was subsequently reversed.

An otherwise valid sentence may be vacated on the basis of excessiveness if the trial court abused its discretion to the extent that it shocks the [152 MICHAPP 134] conscience of the appellate court. People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983). The record reveals that prior to the instant conviction defendant had four felony convictions, one of which, an armed robbery conviction, was reversed on a technical error in the plea-taking procedure. ¹ Because of defendant's recidivistic background, defendant's original sentence of 10 to 20 years for armed robbery does not shock the conscience of this Court. Therefore, we conclude that the trial court could not have found the defendant's conviction invalid on this basis.

However, a defendant has a right to be resentenced where his sentence is based upon...