People v. Haggitt

• Decision Date: 26 April 1971
• Docket Number: No. 1,Docket No. 8532,1
• Citation: 33 Mich.App. 95,189 N.W.2d 842
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bobby Joe HAGGITT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 842

189 N.W.2d 842

33 Mich.App. 95

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bobby Joe HAGGITT, Defendant-Appellant.

Docket No. 8532.

Court of Appeals of Michigan, Division No. 1.

April 26, 1971.

Released for Publication Sept. 21, 1971.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Ass'n, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for appellee.

Before V. J. BRENNAN, P.J., and LEVIN and PETERSON ^*, JJ.

PETERSON, Judge.

During the November, 1970, session of Division 1, Panel III heard 3 cases in which the Court was asked to apply People v. Lessard (1970), 22 Mich.App. 342, 177 N.W.2d 208, A fortiori, to the situation in which a sentencing judge imposes a minimum sentence under the indeterminate sentence act, ¹ which is only one month less than the statutory maximum. All involved crimes of violence. All involved defendants with long records of criminal behavior including previous crimes of violence. All involved defendants who were at liberty under correctional supervision, two on parole and one on probation. And two of the three involved the typical plea bargain tolerated by our overcrowded courts under the sorry euphemism of docket convenience.

In People v. Jordan (1971), 33 Mich.App. 15, 189 N.W.2d 851, an absconded probationer with a long record which included acts of violence, while awaiting disposition of pending charges of auto theft, possession of stolen motor vehicles, forgery, and probation violation, held up a used car lot and shot and killed the fleeing salesman. Charged with first-degree murder, he was permitted to plead to the included offense of manslaughter and substantiated the plea by admissions factually establishing first-degree felony murder. He was sentenced to a minimum term of 14 years, 11 months, the statutory maximum being 15 years. ²

In People v. Pollard (1971), 33 Mich.App. 114, 189 N.W.2d 855, defendant was charged with assault with intent to murder and convicted by jury of felonious assault. The trial record discloses prior felony convictions and that defendant was on parole at the time of the offense. He was sentenced to a minimum term of 3 years, 11 months, the statutory maximum being 4 years. ³

Here, Bobby Joe Haggitt, charged with armed robbery, was permitted to plead to the lesser offense of robbery unarmed. His narrative of the offense was sufficiently vague, unlike that shown on the record of Jordan, supra, that the court was spared the embarrassment of having an account of the larger offense spread on the record. ⁴ It appears the Haggitt has a serious criminal history which includes convictions for felonious assault and armed robbery, being on parole for the latter at the time of the present offense. As in Jordan, he was sentenced to a minimum term of 14 years, 11 months, the statutory maximum being 15 years. ⁵

Michigan's Indeterminate Sentence Act provides as follows:

'When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.'

The following sections of Chapter IX of the Code of Criminal Procedure (P.A.1927, No. 175, as amended, M.C.L.A. §§ 769.10, 769.11, and 769.12; Stat.Ann.1954 Rev. §§ 28.108, 28.1083, and 28.1084) dealing with the sentencing of repeat offenders do not use the same language, but § 769.12 indicates the legislative intent by stating,

'Offenders sentenced under this and the last 2 preceding sections shall not be eligible to parole before the expiration of the minimum term fixed by the sentencing judge at the time of sentence without the written approval of the judge of such court or any judge of such court if the sentencing judge is not then serving. A person to be punishable under this and the last 2 preceding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.'

Countless decisions have upheld long sentences as against the claim that they constituted unconstitutionally cruel or unusual punishment, or reflected an abuse of discretion by the trial judge. In People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140, such a claim was summarily rejected in one sentence:

'It is sufficient to say that the sentence was within the maximum provided by statute.'

That is not to say that judicial discretion may not be abused as in People v. Earegood (1968), 12 Mich.App. 256, 162 N.W.2d 802, or People v. Snow (1970), 26 Mich.App. 510, 182 N.W.2d 820; or that it may be abdicated, as in People v. Lessard, Supra. Defendant's reliance on Lessard, however, is misplaced for it was not the length of the minimum sentence Per se that was dispositive, but the policy of the trial judge, stated on the record, of denying Any effect to the indeterminate sentence act in All cases before him. The Court said, at page 350 of 22 Mich.App., at page 212 of 177 N.W.2d:

'* * * the action as it concerns the individual defendants constitutes reversible error in sentencing. The trial court failed to exercise discretion in setting the individual defendant's minimum sentences.

'In remanding for new sentence, we do not intend to dictate to the trial court what the minimum sentence should be nor will we attempt to determine what sort of sentence complies with the requirements for an indeterminate sentence. The trial court is required to impose sentence within its sound discretion in accord with his evaluation of the defendant as an individual.'

If the Penal Code, setting the maximum penalty, and the Indeterminate Sentence Act constituted the only legislative enactments affecting defendant, his argument that the long sentence defeats the rehabilitation purposes of the Indeterminate Sentence Act would be more plausible. That is not the case, however. Thus, the legislature has provided for the reduction of sentences by good-time and special good-time allowances (M.C.L.A. §§ 800.33, 800.103 (Stat.Ann.1954 Rev. §§ 28.1403, 28.1514)) and provided that prisoners shall be eligible for parole consideration at the expiration of the minimum sentence reduced by his good time and special good-time allowances. M.C.L.A. § 791.233(b) (Stat.Ann.1954 Rev. § 28.2303(b)). Thus, Haggitt may look forward to reducing his sentence by roughly 4 years by good behavior, still leaving a substantial period for post-release parole supervision. Even the serious offender, sentenced to life or a long term of years, excepting those convicted of first-degree murder, are eligible for parole consideration after 10 years. M.C.L.A. § 791.234 (Stat.Ann.1970 Cum.Supp. § 28.2304). And the eligibility of repeat offenders for early parole with the consent of the sentencing judge or his successors, provided for under M.C.L.A. § 769.12, quoted above, is equally available to those sentenced as first offenders by the proviso in M.C.L.A. § 791.233(b), Supra. ⁶ Thus every prisoner knows that there is a fixed standard for reducing his time and moving up his parole eligibility, and that earlier release by special parole is also possible. The sentencing judge knows it also and must be presumed to take these factors into consideration in exercising his discretion.

It is argued that the Indeterminate Sentence Act was intended by the legislature to vest the parole board with a broad discretion and that a sentence depriving the parole board of that power constitutes an abuse of judicial discretion. But it is obvious that every sentence except the shortest possible term limits the area of discretion of the parole board in point of time, and the longer the minimum sentence the greater the limitation. But, assuming a prisoner who is not totally intractable, and entirely apart from special parole procedures, there is never a point at which the parole board is completely deprived of room to exercise its discretion under Michigan statutes.

We are further of the opinion, in any event, that it was not the intent of the legislature to create a power in the parole board co-equal to the judicial power to sentence. The maxim, Qui prior est tempore, potior est jure, is as applicable to criminal as to civil law. The power to sentence, and the exercise of judicial discretion therein, are not only first in time but superior to the exercise by the parole board of its statutory duties. That the legislature has not subordinated that judicial power by the present Indeterminate Sentence Act is clear from In re Southard (1941), 298 Mich. 75, 298 N.W. 457:

'Objection to the delegation of the power of the judiciary over sentences was met by the constitutional amendment of 1902 (Const. 1850, Art. IV, § 47, as amended, and Const. 1908, Art. V, § 28). The amendment did not take away the inherent judicial power to exercise discretion in the imposition of sentences. That power always resided in the judiciary and there...