People v. Hegwood, Docket No. 52480

• Decision Date: 10 September 1981
• Docket Number: Docket No. 52480
• Citation: 109 Mich.App. 438,311 N.W.2d 383
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip C. HEGWOOD, Defendant-Appellant. 109 Mich.App. 438, 311 N.W.2d 383
• Court: Court of Appeal of Michigan — District of US

Page 383

311 N.W.2d 383

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip C. HEGWOOD, Defendant-Appellant.

Docket No. 52480.

109 Mich.App. 438, 311 N.W.2d 383

Court of Appeals of Michigan.

Sept. 10, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 440] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., and James A. Christopherson, Asst. Pros. Atty., for the people.

Milton J. Marovich, Kalamazoo, for defendant on appeal.

Before WALSH, P. J., and MacKENZIE and ERNST, ^* JJ.

WALSH, Presiding Judge.

Defendant was convicted by a jury of tampering with property of a utility, M.C.L § 750.383a; M.S.A. § 28.615(1). He was sentenced to a term of 2 years, 8 months to 4 years in prison.

Defendant's conviction arose from the following set of facts. In the early morning hours of August 31, 1979, Officer Edward Hancox responded to a report that an alarm had been set off at the Bunkman Tire Company. As he drove into the unlighted parking lot, Hancox saw defendant crouching down next to the garage. When the officer turned on his headlights, defendant approached the police car. Hancox then left his vehicle and conducted a pat down search of defendant for weapons. Hancox found two screwdrivers in defendant's front pocket. Defendant was placed in the back of the police car while other officers investigated the building and found that the electrical[109 MICHAPP 441] meters had been disturbed. Defendant was then placed under arrest.

At the time of the offense, defendant was in the custody of the Michigan Department of Corrections in the Valley Inn in Kalamazoo. Defendant was involved in a transitional corrections program. Defendant's arrest occurred on August 31, 1979, and he was subsequently arraigned and bound over to circuit court. In April, 1980, defendant filed a motion to dismiss based on the alleged violation of the 180-day rule. M.C.L. § 780.131; M.S.A. § 28.969(1). The court denied defendant's motion on April 14, 1980, and trial commenced on May 1, 1980, 244 days after defendant's arrest. Defendant contends on appeal that the trial court erred in refusing to dismiss the charge against him because of the prosecution's failure to comply with the 180-day rule.

M.C.L. § 780.131; M.S.A. § 28.969(1) provides:

"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.[109 MICHAPP 442] The written notice and statement provided herein shall be delivered by certified mail."

First, we must determine whether defendant was an "inmate of a penal institution of this state" while he was confined at the Valley Inn in a transitional corrections program. While admitting that "Valley Inn is technically an arm of the State penal system", the prosecution argues that the 180-day rule is inapplicable to defendant because he had freedom to travel in the community. We find this argument unpersuasive.

The consecutive sentencing statute, M.C.L. § 768.7a; M.S.A. § 28.1030(1), applies to a "person * * * incarcerated in a penal or reformatory institution in this state". In interpreting that statute, this Court has ruled that an individual participating in a community corrections program is "incarcerated in a penal or reformatory institution". People v. Johnson, 96 Mich.App. 84, 292 N.W.2d 489 (1980), People v. Mayes, 95 Mich.App. 188, 290 N.W.2d 119 (1980). The same logic applies in this case. The fact that an individual is not confined at the Southern Michigan Prison in Jackson is not a controlling factor if the person continues to be under the control of the Department of Corrections.

Second, we must consider whether the 180-day rule is applicable in a case in which defendant would not be entitled to concurrent sentencing. The prosecutor relies primarily on People v. Loney, 12 Mich.App. 288, 162 N.W.2d 832 (1968), which held that the purpose of the 180-day rule was to preserve the inmate's right to concurrent sentencing. The Loney panel concluded that where consecutive sentencing is mandatory, the 180-day rule is inapplicable since its purpose cannot be served in such a case.

[109 MICHAPP 443] This analysis was recently rejected by several panels of this Court. In People v. Moore, 96 Mich.App. 754, 761-762, 293 N.W.2d 700 (1980), this Court reasoned:

"We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid.

"The Loney Court justified its result on what it believed was the intent of the Legislature in passing this statute. Loney found this intent to be that inmates of state penal institutions should serve concurrent, rather than consecutive, sentences. Because inmates who commit criminal offenses while incarcerated are not entitled to concurrent sentencing, see MCL 768.7a; MSA 28.1030(1), an incarcerated defendant was not prejudiced by delay of trial. However, since Loney was decided the Michigan Supreme Court has recognized that the 180-day rule protects more than just a defendant's right to serve concurrent sentences.

"In...