People v. Holbrook

• Decision Date: 25 April 1975
• Docket Number: No. 2,Docket No. 19705,2
• Citation: 60 Mich.App. 628,231 N.W.2d 469
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nathan D. HOLBROOK, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 469

231 N.W.2d 469

60 Mich.App. 628

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nathan D. HOLBROOK, Defendant-Appellee.

Docket No. 19705.

Court of Appeals of Michigan, Division No. 2.

April 25, 1975.

Released for Publication July 24, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for defendant-appellee.

Before DANHOF, P.J., and HOLBROOK, Jr. and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal ¹ by the people from the denial of a motion for rehearing upon an order of the trial judge dismissing a supplemental information filed under our so-called 'fourth offender' statute. M.C.L.A § 769.12; M.S.A. § 28.1084, M.C.L.A. § 769.13; M.S.A. § 28.1085.

In an unaccustomed role as appellee the State Appellate Defender's office mounted a full scale frontal attack on this Court's opinion in People v. Ungurean, 51 Mich.App. 262, 214 N.W.2d 873 (1974).

The attack was buttressed by a particularly well documented brief and a vigorous and articulate oral presentation. The people through the Appellate Division of the Jackson County Prosecuting Attorney's office met the challenge with equal skill in advocacy.

The appellee characterized Ungurean, supra, as reaching an absurd result, and violating virtually all recognized rules of statutory construction. Its reconsideration and overruling was strongly urged.

We face this issue squarely. We decline to change our holding in Ungurean. We do so in spite of our complimentary remarks as to appellee's presentation and for what to us is a reason well grounded in logic. The converse of our position would result in according to any trial judge controlling his own docket, as it the situation in the case at bar, and who might not be sympathetic to increased punishment for fourth offenders, the unfettered right to override a legislative enactment expressive of public policy. The issue is of major significance to our criminal jurisprudence.

The fundamental fallacy in the position of the appellee and by the trial judge is that they both overlook, or at least disregard, what we so carefully noted and emphasized in Ungurean. The information under the fourth offender statute Does not charge a separate criminal offense. Hence the plethora of case law dealing with the right to a speedy trial as related to the 180-day rule is simply inapposite. In his from-the-bench ruling on the first dismissal the trial judge said, as clearly as can be said, that he relied on the statute. ² We quote him verbatim:

'So the court grants the motion under (M.C.L.A. 780.131 Et seq.; M.S.A. 28.969(1) Et seq. (the 180-day rule)) and the charge contained under supplemental information filed on November 27, 1972, charging the defendant with being guilty of the Offense of fourth felony under the provisions of the habitual criminal section of the Criminal Code of the State of Michigan, wherein defendant is dismissed, and with prejudice, discharged from all holds rising out of that supplemental information filed.' (Emphasis supplied.)

We said with studied care in Ungurean:

'(I)t is firmly established in the jurisprudence of this state that under Michigan's habitual criminal provisions the accused is not charged with commission of a separate criminal offense.' 51 Mich.App. at 265, 214 N.W.2d 875 at 875.

We did not dream this up. We followed binding Supreme Court precedent. Former Justice Adams speaking for a clear majority said:

'(U)nder Michigan's habitual criminal act, the accused is not charged with the commission of a crime.' People v. Hatt, 384 Mich. 302, 306, 181 N.W.2d 912, 914 (1970).

Earlier former Justice Voelker speaking again for a clear majority of the Supreme Court wrote:

'(W)e think, that the legislature did not intend to make a separate substantive crime out of being a habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies. Since the legislature did not except escaping prison from our second offender statute we can only infer that it intended the latter statute to apply to all felonies. This we held with little if any discussion in In re Wilson, 295 Mich. 179, 294 N.W. 145 (1940).' People v. Shotwell, 352 Mich. 42, 46, 88 N.W.2d 313, 315 (1958).

We, the panel of this Court, and the trial judge did nothing in Ungurean but follow the law of this state as settled by our Supreme Court. This, as we understand it, is our oath-bound duty.

Whence comes then this holding by the trial judge that even though he was bound by Ungurean it was prospective, and not retrospective, and therefore not applicable herein? Retroactivity or prospectivity relate to New law. The issue is simply not in this case. The trial judge was in error, when on the motion for rehearing, he held the ruling was prospective only.

So now what of the constitutional ground of the dismissal of the information dehors the 180-day rule?

This, of course, mandates a discussion of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and its Michigan counterpart in People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972).

To the extent that both cases relieve the defendant of the burden of demanding a speedy trial or a waiver under 'clearly identifiable circumstances' they both apply. At first reading it would seem the four factor test was violated. A careful reading of the whole trial court record leads to a contrary conclusion.

First, let us not be unaware that Grimmett quoted with approval from Barker v. Wingo, supra.

"We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely Pro forma objection." (Emphasis supplied.) 388 Mich. at 604--605, 202 N.W.2d at 287.

If ever a case fell squarely within the holding of the ultimate voice in Federal constitutional questions this is it.

The prosecution did everything in its power in this case to bring the case on for trial short of committing contempt of court or arrogating to itself the right to docket its own cases. Hark to the record in the trial court.

June 28, 1973--The defendant, his counsel and the prosecuting attorney all present in court. The prosecution calls the case, defense counsel asks that the matter Remain on the jury trial docket and states one day for trial with no motions to follow. The trial court's final remark without setting a date for trial was, 'You may sit down * * * Mr. Holbrook.'.

September 20, 1973--The defendant in court, both counsel present, and the court said: 'The matter will be placed upon the trial calendar'. No date set.

December 19, 1970--All necessary parties present; the court stated: 'The matter will be set down for trial then'.

January 4, 1974--The court dismisses the...