People v. Harper

• Decision Date: 22 May 1978
• Docket Number: Docket No. 29344
• Citation: 269 N.W.2d 470,83 Mich.App. 390
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karle Andre HARPER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 470

269 N.W.2d 470

83 Mich.App. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karle Andre HARPER, Defendant-Appellant.

Docket No. 29344.

Court of Appeals of Michigan.

May 22, 1978.

Released for Publication Aug. 18, 1978.

Thomas A. Law, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Robert Weisberg, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., D. E. HOLBROOK, Jr. and KELLY, JJ.

KELLY, Judge.

On March 15, 1976, defendant pled nolo contendere to four counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), and one count of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, in Recorder's Court for the City of Detroit. The trial court relied on the preliminary examination (December 15, 1975) transcript and repeat of testimony by the victim at the plea proceedings to establish a factual basis for the instant crimes.

On March 19, 1976, the court sentenced defendant to concurrent sentences of 10 to 15 years on each of four counts of criminal sexual conduct and one count of armed robbery.

The trial judge denied defendant's motion to vacate sentence, motion for evidentiary hearing, and motion to withdraw his plea on June 29, 1976. Defendant appeals as of right.

There were two distinct sexual acts, each charged in connection with the commission of another felony, and then each charged as being perpetrated or accomplished while armed with a weapon. We hold that two of the convictions must be set aside and the charges dismissed.

At the sentencing proceedings on March 19, 1976, the following colloquy took place between defense counsel and the court:

"Mr. Arduin : Pardon me, Your Honor, I don't mean to interrupt but I would also like to clarify to the Court that there was (sic) only two acts of penetration, fellatio and intercourse, although they were perpetrated by different means under the subsections of the statute. So while there is (sic) four particular counts of criminal sexual conduct, there was (sic) only two active acts of sexual

"The Court : Yes, I understand that but he pled guilty to all five counts in the Information and there were two where a weapon was used and that's why there were separate counts. So they more or less mell with one another but the point is that I have to sentence him on each count. They all carry the same maximum penalty.

"Of course, any sentence that I impose will run concurrent with the others; do you (Sic ) understand that, don't you?"

This Court has recently held in People v. Johnson, 75 Mich.App. 221, 224, 255 N.W.2d 207, 209 (1977):

"We are convinced that the Legislature intended that but one conviction under the criminal sexual conduct act could result from a single act of intercourse."

The Johnson Court held that where there was only one sexual penetration of one victim only one conviction could stand. The jury had found Johnson guilty on two counts, and this Court vacated the conviction on one of the counts.

In a more recent case, People v. Nelson, 79 Mich.App. 303, 305, 261 N.W.2d 299, 301 (1977), another panel of this Court refused to follow Johnson. In Nelson, the defendant was convicted on four counts of criminal sexual conduct. The trial court explained the following charges in Nelson :

"So count one alleges intercourse with a person under the age of thirteen. Count two alleges intercourse while the defendant was allegedly armed with a weapon. Count three alleges fellatio with a person under the age of thirteen; and count four alleges fellatio with the defendant allegedly then and there armed with a weapon or an article used or fashioned in the manner to lead a person to reasonably believe it to be a weapon."

The Nelson panel of this Court affirmed defendant's conviction on all four counts. It mentioned the Johnson case in a footnote, Nelson, supra at 319, n.35, 261 N.W.2d 299, and an attempt was made to distinguish Nelson from the standpoint that the victim was a child. We think such a distinction not apropos. The Johnson Court and the Nelson Court are in diametric opposition on this issue. We follow the Johnson decision and resolve the issue by vacating Harper's conviction on two counts and we set aside the sentence on each of those two counts and dismiss with prejudice. Because each of the counts are drawn from one statutory section and each conviction resulted in the same sentence we find it unnecessary to remand. See also People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977).

The next issue is whether the trial court properly advised the defendant of the possible maximum or minimum sentences in substantial compliance with GCR 1963, 785.7(1)(b).

In addressing this issue both parties refer to a section of the court rule that had been superseded at the time of these proceedings below. The court rule referred to by the parties was amended by the Supreme Court in Guilty Plea Cases, 395 Mich. 96, 138-139, 235 N.W.2d 132 (1975). The effective date of the amendment was December 7, 1975. The nolo contendere proceeding below took place on March 15, 1976.

The applicable court rule is found in GCR 1963, 785.7(1)(b), referring to a maximum possible prison sentence, and GCR 1963, 785.7(1)(d), referring to mandatory minimum prison sentence, if any.

On page 3 of the plea transcript the court advised the defendant that he could receive a sentence of up to life imprisonment or any number of years in the discretion of the court. In so stating the trial court sufficiently complied with GCR 1963, 785.7(1)(b), having advised the defendant of the maximum possible prison sentence of life imprisonment. See Guilty Plea Cases, 395 Mich. at 117-118, 235 N.W.2d 132.

The oft-recurring question is whether or not the phrase contained in the armed robbery statute and the first-degree criminal sexual conduct statute of "imprisonment in the state prison for life or for any term of years" is subject to being construed as providing a mandatory minimum sentence requiring advice to be given by the trial judge under GCR 1963, 785.7(1)(d), M.C.L. § 750.529; M.S.A. § 28.797, M.C.L. § 750.520b(2); M.S.A. § 28.788(2)(2).

As to minimum sentence the trial court in the instant case advised the defendant:

"The Court: * * * you could receive any number of years up to life imprisonment to this offense. You're aware of that; are your (sic) not?

"Mr. Harper: Yes, sir.

"The Court: A person convicted or (Sic ) armed robbery and criminal sexual conduct of the first degree can receive as high as life imprisonment or any number of years in the discretion of the court. However, it's mandatory upon the court as far as armed robbert (Sic ) is concerned that the court sentence you to some term of years; do you understand that?

"Mr. Harper: Yes, sir."

In People v. Burridge, 99 Mich. 343, 58 N.W. 319 (1894), the Court held that where a statute provides imprisonment for life or any term of years, a minimum sentence imposed shall be not less than two years.

The Burridge case has recently been discredited by this Court based upon Guilty Plea Cases, supra, and in People v. McKnight, 72 Mich.App. 282, 284, 249 N.W.2d 392, 393 (1976), Lv. den., 399 Mich. 848 (1977). ¹ The McKnight court stated that "there is no necessity to advise the defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or 'any term of years' ". McKnight had entered a plea of guilty to a charge of armed robbery.

In a later case, a panel of this Court has stated that "there is no mandatory minimum sentence for armed robbery". People v. Freeman, 73 Mich.App. 568, 570, 252 N.W.2d 518 (1977). But there is. It is "any number of years". If that phrase does not mean, under Burridge, two years (see fn. 1, Supra ), then what does it mean?

The general rules of construction in M.C.L. § 8.3; M.S.A. § 2.212 are mandatory in construing the statutes of this state unless such construction would be "inconsistent with the manifest intent of the legislature". The fact that under the instant statutes the Legislature has used such a flexible phrase as "any term of years" suggests no manifest intent contra to use of the statutory rules of construction.

"Any term of years" means no less than one calendar year. This finding is based upon M.C.L. § 8.3b; M.S.A. § 2.212(2), which provides "years" may be construed as "year", and under M.C.L. § 8.3j; M.S.A. § 2.212(10), "the word 'year' " equals "a calendar year".

GCR 1963, 785.7(1)(d) applies to "prison" sentences (I. e., "the mandatory minimum Prison sentence"), and under Michigan law there can be no prison term for a defendant serving One year or less. M.C.L. § 769.28; M.S.A. § 28.1097(1). See People v. Lyles, 76 Mich.App. 688, 257 N.W.2d 220 (1977). Furthermore, under M.C.L. § 761.1(g); M.S.A. § 28.843(g), " 'felony' means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for More than one year or an offense expressly designated by law to be a felony". (Emphasis added). See People v. Strickland, 79 Mich.App. 454, 263 N.W.2d 11 (1977).

Black's Law Dictionary defines "prison" as synonymous with penitentiary "to designate institutions for the imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails". Black's Law Dictionary (4th ed.), 1358 (1951).

"We are guided by two canons of statutory construction: First, that statutes In pari materia must be construed together and, second, if language is plain and unambiguous it must be given effect." People ex rel. Oakland Prosecuting Attorney v. Bureau of Pardons & Paroles, 78 Mich.App. 111, 119, 259 N.W.2d 385, 389 (1977). Construing the statutes and cases authorities together mandates a term of More than one year and thus provides the "mandatory minimum" sentence for which a "pr...