People v. Hendrick

• Citation: 247 N.W.2d 840,398 Mich. 410
• Decision Date: 21 December 1976
• Docket Number: No. 7,J,7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Grant H. HENDRICK, Defendant-Appellant. une Term. 398 Mich. 410, 247 N.W.2d 840
• Court: Supreme Court of Michigan

Page 840

247 N.W.2d 840

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Grant H. HENDRICK, Defendant-Appellant.

No. 7, June Term.

398 Mich. 410, 247 N.W.2d 840

Supreme Court of Michigan.

Dec. 21, 1976.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Noecker, Pros. Atty., Keith D. Roberts, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

State Appellate Defender Office by F. Michael Schuck, III, Asst. Defender, Susan J. Smith, Research Atty., Detroit, for defendant-appellant.

William L. Cahalan, Pros. Atty., County of Wayne, Stephen H. Boak, Asst. Pros. Atty., Director, Prosecutor's Repeat Offenders Bureau (PROB), Raymond P. Walsh, Asst. Pros. Atty., Detroit, amicus curiae.

COLEMAN, Justice.

Leave to appeal was granted in this case to determine what procedures are required when an individual is sentenced as an habitual offender. Because the procedures followed in this case were proper, we affirm defendant's sentence.

On October 20, 1971, defendant was arrested at the scene of a breaking and entering. During the incident he seriously wounded a state policeman. He was charged with breaking and entering with intent to commit larceny and assault with intent to murder.

Defendant pled guilty to larceny on October 21, acknowledging that he would still have to answer for the assault. That charge went to a jury trial on December 15. He was convicted on December 20 of assault with intent to do great bodily harm less than murder.

On January 10, 1972, defendant was sentenced to a term of 9 1/2 to 10 years. On the same day the prosecutor filed a supplemental information asking that defendant be sentenced as a 'fifth offender'. A copy was served on defendant at the sentencing.

On February 2, defendant's attorney moved to quash the supplemental information. The attorney claimed the prosecutor had prior knowledge of defendant's convictions. Under People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968), he said the prosecutor was required to file the information when he became aware of the convictions.

The prosecutor said he 'first became aware of his criminal record when I received his FBI rap sheet which is dated--received by our office on the 8th day of December'. Because the information was received only one week before the assault trial, there 'was absolutely no time . . . to do all the checking that had to be done to determine whether or not . . . he did in fact have a record':

'I think the Prosecutor would be foolish to rely solely upon a rap sheet for information, and I did not. It took me some three weeks to track this down and find witnesses, whether he had these records and whether or not we could prove them; and I would say that I moved as speedily as I possibly could.'

The trial court felt 'it was the intent of the Legislature and of our courts that the prosecuting attorney be given latitude in filing the supplemental information'. Because the prosecutor 'has represented to the court that there was no knowledge on his part' until after defendant's plea, the judge felt the filing of supplemental information after the jury trial 'is much fairer and more protective of the rights of the defendant than if he were to be tried by the same jury that found him guilty on the last felony'. The motion was denied.

A jury was empaneled and the prosecution demonstrated that defendant had been convicted of five felonies. This required the production of records and witnesses from Washington and North Dakota as well as Michigan. The jury found defendant guilty. Defendant's previous sentence was vacated and he was sentenced to life.

The Court of Appeals affirmed. It said defendant's claim was controlled by People v. Marshall, 41 Mich.App. 66, 199 N.W.2d 521 (1971). That case said 'the prosecutor has discretion to file a supplemental information' either before or after conviction despite his knowing about prior convictions.

When an individual is convicted of a felony, M.C.L.A. §§ 769.10--12; M.S.A. §§ 28.1082--.1084 permits the court to increase the sentence if the person has previous felony convictions. M.C.L.A. § 769.12 provides that the person

'need not have been indicted and convicted as a previous offender in order to receive the increased punishment . . . but may be proceeded against as provided (in MCLA 769.13).'

M.C.L.A. § 769.13 reads in part:

'If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions. Whereupon the court . . . shall inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. . . . The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal cases shall be followed in the empanelling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges. If the accused shall plead guilty to such information or if the jury shall return a verdict of guilty, the court may sentence him to the punishment prescribed in the 3 preceding sections, as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated if required.'

Legislation such as this increases punishment 'because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property'. People v. Palm, 245 Mich. 396, 223 N.W. 67 (1929). The same Court agreed that "in determining the amount or nature of the penalty to be inflicted, the Legislature may require the courts to take into consideration the persistence of the defendant in his criminal course". Also see In Re Southard, 298 Mich. 75, 298 N.W. 457 (1941) ('The habitual criminal act was passed to provide a punishment for repeated commissions of felonies'.)

In People v. Shotwell, 352 Mich. 42, 88 N.W.2d 313 (1958), the Court said 'the legislature did not intend to make a separate substantive crime out of being an habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies'. See People v. Ungurean, 51 Mich.App. 262, 214 N.W.2d 873 (1974), and People v. Holbrook, 60 Mich.App. 628, 231 N.W.2d 469 (1975), leave to appeal granted 395 Mich. 752 (1975). In People v. Judge of Recorder's Court, 251 Mich. 626, 232 N.W. 402 (1930), the Court said the legislation 'merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence'.

At one time the Legislature required that allegations of prior felony convictions be included in the information and proved at the trial on the principal charge. This had to 'be complied with in order to give the court jurisdiction to sentence respondent as for a third offense'. People v. Campbell, 173 Mich. 381, 139 N.W. 24 (1912). Also see People v. Ancksornby, 231 Mich. 271, 203 N.W. 864 (1925). The Court has required strict compliance with the statutory requirements. See People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931), and People v. Gunsell, 331 Mich. 105, 49 N.W.2d 83 (1951).

In Re Brazel, 293 Mich. 632, 292 N.W. 664 (1940), discussed whether legislation similar to M.C.L.A. § 769.13 required the prosecution to file a supplemental information after the principal case. The Court concluded that 'prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later . . . by a supplemental information * * * where (he) acquires such knowledge . . . subsequent to conviction'. The Court said 'it is not necessary to file a supplemental information' if the previous convictions 'are known to the prosecuting attorney'. The legislation 'was added to enable the prosecutor to file his supplemental information where he discovers such prior convictions so that a sentence might be revised to include augmented punishment prescribed by the statute for incorrigible criminals'.

The defendant in People v. Burd, 1 Mich.App. 178, 134 N.W.2d 843 (1965), was charged with escape and with being guilty of a second felony. He asked that references to his prior conviction be excluded. ¹ The trial court denied the motion. The Court of Appeals said:

'The language of Smith will have to remain Dictum. Keith Burd has not yet been tried; the minds of his jurors have not yet been exposed to any potentially poisonous information. Reference to his prior conviction may quite properly seep into the record of Burd's trial on the issue of escaping prison. The jury may reasonably conclude that one charged with escaping prison was previously convicted of a criminal offense. The defendant may elect to testify in his own behalf and suffer the People's efforts to impeach his credibility. We see, however, no valid reason for allowing the information to provide evidence of past criminality when to do so might jeopardize constitutional rights.'

The Smith language 'is sufficiently strong to warrant granting the motion'. People v. Cairns, 4 Mich.App. 633, 145 N.W.2d 345 (1966), after quoting Burd, said '(i)t appears to this court that the better procedure to follow in such cases in the future would be to proceed After conviction . . . by filing a separate information charging the previous convictions'.

In People v. Stratton, the Court said the statutes

'contemplate 2 separate situations and procedures to be followed...