People v. Hunter

• Decision Date: 05 October 1993
• Docket Number: Docket No. 155245
• Citation: People v. Hunter, 507 N.W.2d 768, 202 Mich.App. 23 (Mich. App. 1993)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Domenick Formaine HUNTER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 768

507 N.W.2d 768

202 Mich.App. 23

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Domenick Formaine HUNTER, Defendant-Appellee.

Docket No. 155245.

Court of Appeals of Michigan.

Submitted Sept. 14, 1993, at Lansing.

Decided Oct. 5, 1993, at 9:15 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., Arthur A. Busch, Pros.Atty., Donald A. Kuebler, Chief, Appellate Div., and Morris R. Kent, Asst. Pros.Atty., for the People.

William M. Haggerty, Detroit, for defendant-appellee on appeal.

Before HOLBROOK, P.J., and FITZGERALD and TAYLOR, JJ.

PER CURIAM.

In this casewe are presented with the question whether the mandatory sentencing provision for major controlled substance offenders, M.C.L. § 333.7401(3);M.S.A. § 14.15(7401)(3), is applicable when the sentence subject to consecutive sentencing precedes the sentence imposed for the commission of another felony.

I

On April 3, 1992, in a case not related to the case on appeal before us, defendant was convicted by a jury of possession with intent to deliver more than fifty but less than 225 grams of cocaine, M.C.L. § 333.7401(2)(a)(iii);M.S.A. § 14.15(7401)(2)(a)(iii).Defendant was sentenced by Judge Valdemar Washington on May 7, 1992, to a prison term of ten to twenty years.

In the case currently before us, defendant pleaded guilty, pursuant to a plea agreement, of possession of less than twenty-five grams of cocaine, M.C.L. § 333.7403(2)(a)(v);M.S.A. § 14.15(7403)(2)(a)(v).The original sentencing date of April 28, 1992, was adjourned to May 5, 1992, to facilitate completion of the presentence information report.On May 5, 1992, the trial judge adjourned the sentencing hearing to May 7, 1992, the date set for sentencing in the other case.Because the prosecutor raised the issue of consecutive sentencing, the sentencing hearing was once again adjourned to permit the parties to address the issue.On May 8, 1992, Judge Earl Borradaile sentenced defendant to a prison term of twelve to eighteen months, with credit for thirty-seven days served, to be served concurrently with the sentence imposed in the other case.The prosecutor moved for, and the judge denied, a motion to correct the sentence for the imposition of a consecutive sentence.

The prosecution appeals as of right from Judge Borradaile's determination that he did not have authority to impose a consecutive sentence pursuant to M.C.L. § 333.7401(3);M.S.A. § 14.15(7401)(3), which provides that a sentence imposed for certain violations of §§ 7401and7403"shall be imposed to run consecutively with any term of imprisonment imposed for the commission of any other felony."

II

M.C.L. § 333.7401(3);M.S.A. § 14.15(7401)(3) governs where a defendant commits a controlled substance offense and another felony.Section 7401(3) is limited in its application, however, to "[a] term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv)."A consecutive sentence may be imposed only if specifically authorized by statute.People v. Chambers, 430 Mich. 217, 222, 421 N.W.2d 903(1988).By its clear terms, § 7401(3) does not authorize consecutive sentencing of a term of imprisonment imposed pursuant to § 7403(2)(a)(v).Hence, Judge Borradaile did not have authority to impose a consecutive sentence.

The prosecution argues, however, that Judge Borradaile was required to impose a consecutive sentence because he was the last in time to sentence.The prosecution relies on Chambers, supra, to support its argument.In Chambers, the Court held that a court that imposes sentence upon a defendant who is awaiting sentencing in a separate court for a separate offense lacks discretion to impose a consecutive sentence.The prerogative of consecutive sentencing is accorded only to the court last in time to impose sentence.Id. at 231, 421 N.W.2d 903.

Chambers is not controlling in the instant case.InChambers, the Court construed the statutory language of M.C.L. § 768.7b;M.S.A. § 28.1030(2), which is markedly different from the language of § 7401(3).M.C.L. § 768.7b;M.S.A. § 28.1030(2) authorizes consecutive sentencing when the defendant commits a second felony while felony charges are pending and applies when there are "sentences imposed for the conviction of the prior charged offense and the subsequent offense."In that situation, a consecutive sentence is authorized for each felony.In contrast, the language of § 7401(3) contemplates the existence of a sentence for "another felony" and places the authority to impose a consecutive sentence on the trial judge who is imposing a term of imprisonment pursuant to § 7401(3).The other felony will not always be one subject to consecutive sentencing.

At the time defendant was sentenced by Judge Washington in the other case, no term of imprisonment had been imposed for the commission of another felony.Thus, § 7401(3) did not authorize a consecutive sentence.¹Had defendant been sentenced in this case before imposition of the sentence in the other case, he would have been subject to a mandatory consecutive sentence.Because of the sequence of the sentences in this case, however, consecutive sentencing was not authorized by statute.²

The prosecution also challenges the jail credit that defendant received.Specifically, the prosecution...